Citation Nr: 18160339
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 10-40 881A
DATE:	December 27, 2018
REMANDED
Entitlement to service connection for a low back condition, to include as secondary to a service-connected disability, is remanded.
Entitlement to an initial rating in excess of 10 percent for migraine headaches is remanded.
Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis is remanded.
Entitlement to an initial rating in excess of 10 percent for residuals of a left hip strain is remanded.
REASONS FOR REMAND
The Veteran served on active duty with the United States Marine Corps from November 1987 to February 1999.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2009 and September 2009 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).
This case was previously before the Board in October 2017 when it was remanded for further development.   
The claim of entitlement to service connection for a low back condition and the increased rating claims for migraine headaches, bilateral plantar fasciitis, and residuals of a left hip strain are remanded.
Initially, the Board notes that the October 2017 Board decision remanded the four claims currently before the Board to obtain private medical records that the Veteran identified in six fully completed and signed VA Form 21-4142s received by VA in October 2010.  In particular, the October 2017 Board remand directed the RO to request from the Veteran a fully completed and signed VA Form 21-4142 for each health care provider from whom she would like VA to obtain records, to include the providers the Veteran submitted VA Form 21-4142s for in October 2010.  Then, the October 2017 Board remand directed the RO to obtain any of the requested medical records.  
The Agency of Original Jurisdiction (AOJ) issued a supplemental statement of the case in May 2018 that reflects that the AOJ sent two letters to the Veteran in an effort to obtain additional private medical records to support her claim.  A review of the record illustrates that the AOJ sent one letter in November 2017 requesting the Veteran to complete a VA Form 21-4142 for private treatment providers.  The second letter described in the May 2018 supplemental statement of the case dated in April 2018 relates to the issue of the number of the Veteran’s dependents and not the development of the private medical records.  The record does not reflect that the AOJ sent a second letter to the Veteran regarding a request for the private medical records, even though it erroneously told her that it did so.  The Board notes that the six fully completed and signed VA Form 21-4142s from October 2010 have expired; hence, it is necessary to obtain further authorization from the Veteran in order to obtain those records.  Furthermore, VA’s duty to assist provides that VA should encourage claimants to submit relevant private medical records if such submission does not burden the claimant.  The November 2017 letter sent to the Veteran did not clearly inform her that she needed to submit new 21-4142s as the prior 21-4142s had expired and did not encourage the claimant to submit the private medical records on her own.  38 U.S.C § 5103A; 38 C.F.R. § 3.159.  Therefore, these claims are being remanded to ensure that reasonable efforts are made to request authorization from the appellant to obtain these private medical records.  
In addition, regarding the Veteran’s claim for service connection for a low back condition, the Veteran and her representative have alleged that her low back condition is also as secondary to a service-connected disability.  In particular, they contend her service-connected bilateral plantar fasciitis and/or left hip strain have caused or aggravated her low back condition.  See Informal Hearing Presentation, dated September 11, 2017.  Therefore, an additional VA examination and opinion is necessary.
The matters are REMANDED for the following actions:
1. Request that the Veteran submit a fully completed and signed VA Form 21-4142, Authorization and Consent to Release Information to VA, for each health care provider from whom she would like VA to obtain records, to include the health care providers for whom she submitted VA Form 21-4142s in October 2010 (Dr. M.A.F., Pioneer Spine and Sport, Rehabilitation Medicine, Riverbend Medical Group, Dr. T.J.D., and Hampden County Physician Associates).  Inform her that the October 2010 21-4142s have expired and can no longer be used to obtain the records and that in order for VA to obtain the records she must submit a new 21-4142, and encourage her to submit to VA any relevant private records if such submission does not burden her.  
Based on the Veteran’s response, attempt to procure copies of all records which have not been obtained from identified treatment sources.
If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).
2. After completing the development requested in item (1), provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran’s low back condition.  Her electronic claims file, including a copy of this decision and remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. 
After completing all indicated tests and studies, the examiner is to respond to the following:
A) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s low back disorder is related to her service, to include her October 1992 fall from a telephone pole?
B) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s low back condition was caused by her service-connected bilateral plantar fasciitis or left hip strain?
C) Is it at least as likely as not (a 50% or greater probability) that the Veteran’s low back condition was aggravated (that is, any increase in severity beyond the natural progress of the condition as shown by comparing the current disability to medical evidence created prior to any aggravation) by her service-connected bilateral plantar fasciitis or left hip strain?
The examiner must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Breitbach, Associate Counsel

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