Citation Nr: 0004936 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 94-21 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to secondary service connection for a low back disorder by aggravation due to service-connected pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran had active military service from November 1942 to October 1944. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for a low back condition as secondary to service-connected pes planus. This case was before the Board in July 1996, when it was remanded for a VA orthopedic examination to determine the etiology of the veteran's low back condition. In June 1997, the Board denied service connection for a low back condition as secondary to service-connected pes planus. The veteran appealed to the United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court). In February 1999, the Court affirmed in part and vacated in part and remanded the Board's June 1997 decision. The veteran has also claimed entitlement to compensation for an eye disability under the provisions of 38 U.S.C.A. § 1151. This claim has not been adjudicated and is referred to the RO for appropriate action. REMAND In order to ensure proper compliance with the law, applicable regulations, and precedent decisions of the Court, the Board finds that additional development of the evidentiary record is required. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). When aggravation of a nonservice-connected condition is the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In February 1999, the Court affirmed that part of the Board's June 1997 decision that found that the veteran's service- connected pes planus did not cause his low back condition. Therefore, the issue that remains for consideration is whether the service-connected pes planus aggravated the veteran's low back condition. In July 1996, the Board remanded this case to the RO. The Board finds that the RO did not substantially comply with the directives of the Board's previous remand. See Talley v. Brown, 6 Vet. App. 72, 74 (1993). A Board remand confers upon the veteran the right to compliance with the remand orders, and VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The prior remand specifically instructed the RO to afford the veteran a VA orthopedic examination to determine the etiology of his low back condition. Specifically, the examiner was asked to render an opinion as to whether it was at least as likely as not that any back disability was caused by or aggravated by the veteran's service-connected pes planus. While the examiner rendered an opinion concerning causation, there was no discussion as to whether the veteran's service- connected pes planus aggravated or worsened his low back disorder. Additional development is warranted in this regard. Further, in the Appellant's Brief dated in August 1998, the veteran's representative indicated that there were additional medical records relevant to the veteran's claim, including a November 14, 1997, magnetic resonance imaging (MRI) of the spine, a statement from an orthopedic physician, and a July 6, 1998, examination report. The RO should make arrangements to obtain these records on remand, as the duty to assist involves obtaining relevant medical reports where indicated by the facts and circumstances of the individual case. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Therefore, this case is REMANDED for the following: 1. Request that the veteran provide a list of those who have treated him for his low back disorder since 1997 and obtain all records of any treatment reported by the veteran that are not already in the claims file. The Board is particularly interested in any treatment received at the Dorn VA Medical Center (VAMC), a November 14, 1997, MRI of the spine, a statement from an orthopedic physician, and a July 6, 1998, examination report (as referenced in the Appellant's Brief, dated in August 1998). With respect to the VAMC, all records maintained are to be requested, to include those maintained in paper form and those maintained electronically (e.g., in computer files) or on microfiche. If any requests for private treatment records are not successful, the veteran and his representative should be advised of this and given the opportunity to obtain and submit the records, in keeping with the veteran's responsibility to submit evidence in support of his claim. 38 C.F.R. § 3.159(c). 2. After obtaining as many of the above records as possible, afford the veteran a VA orthopedic examination. The examiner should be provided a copy of this remand and the veteran's entire claims folder. The examiner is asked to indicate that he or she has reviewed this material in its entirety. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Following examination of the veteran, the examiner should indicate the exact diagnosis or diagnoses of the veteran's low back disorder(s). The examiner should furnish an opinion as to whether, in his or her best medical judgment, it is at least as likely as not that any back disability is aggravated by the veteran's pes planus. If, in the medical judgment of the examining physician, it is at least as likely as not that the veteran's back disability is aggravated by his pes planus, the extent of disability attributable to the aggravation should be indicated, if possible. The examiner must provide a comprehensive report including complete rationale for all conclusions reached. If further testing or examination by other specialists is determined to be warranted for evaluation of the condition at issue, such testing or examination is to be accomplished. 3. Review the claims folder and ensure that all of the foregoing development is completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the veteran's claim on appeal, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand, including the VA examination. 5. If any benefit sought remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and given the opportunity to respond. Thereafter, the claim is to be returned to the Board if appropriate, following applicable appellate procedure. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this REMAND are to obtain additional information and to comply with all due process considerations. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).