Citation Nr: 0411457 Decision Date: 05/03/04 Archive Date: 05/14/04 DOCKET NO. 02-05 164A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for bilateral pes planus. 2. Entitlement to service connection for osteoarthritis of multiple joints, asserted as due to cold injuries. 3. Entitlement to service connection for a bilateral fungus infection of the toenails due to cold injury. 4. Entitlement to service connection for bilateral knee disability, asserted as secondary to bilateral pes planus. 5. Entitlement to service connection for bilateral ankle disability, asserted as secondary to bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran from July 1951 to July 1953, including combat service during the Korean Conflict, and his decorations include the Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2001 and July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In the June 2001 rating decision, the RO denied service connection for osteoarthritis of multiple joints and a bilateral fungus infection of the toenails, both of which were claimed as secondary to exposure to cold weather conditions while serving in Korea during the Korean Conflict. In the latter rating action, the RO denied the veteran's application to reopen a claim of service connection for bilateral pes planus, as well as his claims of service connection for knee and ankle disabilities, asserted as secondary to his bilateral pes planus. The veteran perfected a timely appeal of these determinations to the Board. In the following decision, the Board grants service connection for degenerative joint disease of the right and left shoulders, right and left knees, and right and left hands, each as a residual of the veteran's in-service cold injuries, which constitutes an allowance of his claim of service connection for osteoarthritis of multiple joints. Given this determination, the veteran's claim of service connection for bilateral knee disability is moot. In November 2003, the veteran, accompanied by his accredited representative, testified at a videoconference hearing before the undersigned Veterans Law Judge. The veteran's claim of service connection for bilateral ankle disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All identified relevant evidence necessary for disposition of the appeal has been obtained. 2. In a September 1996 rating decision, the RO, while noting the finality of its November 1965 rating action, confirmed and continued its denial of service connection for bilateral flat feet (pes planus); later that month, the RO notified the veteran of the decision and of his appellate rights 3. The veteran filed a timely Notice of Disagreement to the September 1996 rating action, and in February 1997, the veteran was issued a Statement of the Case; however, in May 1997, the veteran withdrew his appeal and the decision became final. 4. Evidence received since the September 1996 rating decision is new, relates to a necessary unestablished fact, and raises a reasonable possibility of substantiating the claim. 5. The veteran was exposed to cold weather conditions during his period of combat service during the Korean Conflict. 6. With resolution of all reasonable doubt in his favor, the veteran's bilateral pes planus was aggravated due to the cold weather and combat conditions he experienced during his period of service in the Korean Conflict. 7. The veteran's osteoarthritis of multiple joints, to specifically include degenerative joint disease of the right and left shoulders, right and left knees, and right and left hands, is related to the cold weather conditions he experienced during his combat service in the Korean Conflict. 8. The veteran's onychomycosis is related to the cold weather conditions he experienced during his combat service in the Korean Conflict. CONCLUSIONS OF LAW 1. The RO's September 1996 decision that denied the veteran's application to reopen a claim of service connection for bilateral pes planus is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.204, 20.302(a), 20.1103 (1996). 2. Evidence received since the February 1996 RO rating decision is new and material; the claim of entitlement to service connection for bilateral pes planus is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2003). 3. The veteran has bilateral pes planus as a residual of cold injuries that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2003). 4. The veteran has osteoarthritis of multiple joints, to specifically include degenerative joint disease of the right and left shoulders, right and left knees, and right and left hands, that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003). 5. The veteran onychomycosis was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5103, 5103A, 5107, and 5126, and codified as amended at 5102, 5103, 5106 and 5107 (West 2002)) redefined VA's duty to assist a veteran in the development of a claim. Guidelines for the implementation of the VCAA that amended VA regulations were published in the Federal Register in August 2001. 66 Fed. Reg. 45620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board finds that all relevant evidence has been obtained with regard to the veteran's application to reopen a claim of service connection for bilateral pes planus as well as for his claims of service connection for osteoarthritis of multiple joints, bilateral fungus infection of the toenails and bilateral knee disability, and that the requirements of the VCAA have been satisfied. In this regard, the Board notes that the VCAA specifically states that nothing in the Act shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C. § 5103A(f). VA has amended its regulations to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits or who attempts to reopen a previously denied claim. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) (relating to the definition of new and material evidence) and to the second sentence of § 3.159(c) and § 3.159(c)(4)(iii) (pertaining to VA assistance in the case of claims to reopen previously denied final claims), which apply to any application to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). In April 2001, the veteran was provided with a VA examination to determine the nature and extent of his orthopedic and dermatological impairment, and to obtain an opinion as to the etiology of these conditions. See Charles v. Principi, 16 Vet. App. 370 (2002). Further, VA has associated with the claims folder voluminous records of the veteran's VA and private treatment for these disabilities, and in November 2003, he testified at a hearing conducted before the undersigned Veterans Law Judge. The veteran and his representative also have been provided with Statements of the Case (SOCs) and Supplemental Statements of the Case (SSOCs) that discuss the pertinent evidence, and the laws and regulations related to the claim, and essentially advised them of the evidence needed by the veteran to prevail on the claim. In addition, in March and April 2001 and June 2002 letters, the RO notified the veteran of the evidence needed to substantiate his claims and offered to assist him in obtaining any relevant evidence. By way of these communications, VA gave notice of what evidence the appellant needed to submit and what evidence VA would try to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). There is no identified evidence that has not been accounted for and the veteran's representative has been given the opportunity to submit written argument. Under the circumstances, the Board finds that the veteran has been provided with adequate notice of the evidence needed to successfully prove his claims and that there is no prejudice to him by appellate consideration of the claim at this time, without a prior remand of the case to the RO for providing additional assistance to the veteran in the development of his claims as required by the VCAA or to give the representative another opportunity to present additional evidence and/or argument. Bernard v. Brown, 4 Vet. App. 384 (1993). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, in light of the Board's favorable determinations and the extensive record, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Application to reopen claim of service connection for bilateral pes planus The service medical records show that, at service entry, the veteran was diagnosed as having third-degree pes planus that was not considered disabling. He was treated for this condition during service and at separation he was noted to suffer from this disability. In August 1965, the veteran filed a claim of service connection for left hand disability. In October 1965, he was afforded a formal VA examination with respect to this claim, and in a November 1965 rating decision, the RO granted service connection for a scar on the palm of his left hand. In that same rating action, although he had not filed a claim of service connection for pes planus, the RO denied service connection for that condition, along with several other disabilities; in a November 1965 letter ,the RO did not explain its basis for the determination, while notifying him that service connection for bilateral pes planus had been denied. In a June 1996 statement that the RO interpreted as an informal application to reopen his claim of service connection for bilateral pes planus, the veteran reported that he had flat feet due to carrying heavy equipment while stationed in Korea. In support, in August 1996, he submitted a signed statement prepared by a former service colleague, who stated that he recalled witnessing the veteran having foot problems in 1952, which he continued to complain of until he was able to go to the aid station, where he was issued corrective boots. In a September 1996 rating decision, the RO, pointing out that pes planus was noted at service entry, denied service connection for the condition on the basis that there was no evidence showing that the disability was aggravated during service. The veteran filed a timely Notice of Disagreement with the September 1996 rating action, and in February 1997, the RO issued the veteran an SOC; however, as the Board noted in a May 1998 decision, the veteran withdrew the appeal and the decision became final Also of record at the time of the September 1996 rating decision is an October 1995 private medical report prepared by Dr. F. Joseph Whelan, who after discussing the veteran's pertinent in-service history, diagnosed him as having orthopedic disabilities of the feet due to service. Because the veteran withdrew his appeal of the RO's September 1996 decision that denied his application to reopen a claim of service connection for bilateral pes planus, it became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.204, 20.302(a), 20.1103 (1996). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under 38 C.F.R. § 3.156(a) (2003), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The revised version of 38 C.F.R. § 3.156(a) applies in this case because the veteran's claim was not received until May 2002, i.e., after the current regulation's effective date of August 29, 2001. Evidence associated with the claims folder since the RO's September 1996 rating decision includes private and VA treatment records dated since the late 1990s, which show that the veteran has been diagnosed as having bilateral pes planus; an October 2002 lay statement drafted by one of the veteran's former service colleagues; the transcript of the veteran's testimony at a hearing conducted before the undersigned Veterans Law Judge in November 2003; and statements and written argument submitted by or on behalf of the veteran. Of particular significance is the statement of the veteran's in-service colleague in which he reported that while serving together in Korea in 1952, the veteran began having foot problems and started to walk with a noticeable limp during service, which indicates that the veteran's bilateral pes planus became symptomatic while he was on active duty. Also of particular importance is the veteran's statements and testimony, which likewise reflect that he starting to experience manifestation of his bilateral pes planus during service and that have continued since that time, and which he attributed to ill fitting footwear; consistent with the lay statements of his service colleagues, he reported that he was issued corrective footwear to treat this problem. In this regard, the Board notes that in Charles v Principi, 16 Vet. App. 370, 374-75 (2002), the Court held that the veteran is competent to report that he or she has experienced a continuity of symptoms since service. Accordingly, the Board finds that the new evidence received since the September 1996 rating decision relates to an unestablished fact necessary to support the claim, as there is now an indication that the veteran suffers from pes planus that may have been aggravated during or as a consequence of service. In light of the basis for the RO's November 1965 and September 1996 determinations, this evidence raises a reasonable possibility of substantiating his claim. Accordingly, this evidence is "new and material" under the revised provisions of 38 C.F.R. § 3.156(a), and the claim is reopened. III. Service connection for bilateral pes planus, osteoarthritis of multiple joints, and bilateral foot fungus of the toenails Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The law further provides that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, in cases where a "combat" veteran claims service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are to be applied. In pertinent part, 38 C.F.R. § 3.304(d) provides: Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has provided a three-step analysis in cases where a combat veteran seeks benefits pursuant to 38 C.F.R. § 3.304. First, the Appeals Court noted, [I]t must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." . . . As the second step, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." . . . [I]f these two inquiries are met, the Secretary [of the VA] "shall accept" the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists. Dambach v. Gober, 223 F.3d 1376, 1380 (Fed. Cir. 2000), citing Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996). This section considerably lightens the burden of a combat veteran who seeks benefits for disease or injury which he alleges were incurred in combat in service. Collette at 392. The third step requires the Board to consider whether there is clear and convincing proof that would rebut the presumption of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Collette at 393. In addition, in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In support of each of these claims, the veteran asserts that he has each condition as a consequence of his service in the Korean Conflict, to specifically include both combat injuries and his exposure to cold temperatures while stationed in Korea during the Korean Conflict. In light of the veteran's combat service, and because his reported foot injuries and cold exposure are consistent with the nature and circumstances of his combat service in Korea, the Board finds that, as a matter of law, the veteran sustained these in- service injuries. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Further, although not considered by the RO, the Board notes that VA recognizes that the chronic effects of exposure to cold temperatures include weak or fallen arches as well as chronic fungus infection of the feet and disturbances of nail growth. VA also acknowledges that the chronic effects of exposure to cold temperatures include an increased risk of developing, among other conditions, arthritis or other bone abnormalities. See Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20 (Manual). That Manual provision further provides, under such circumstances, Service connection for these residuals may be in order if they arise in the area of a cold injury incurred during military service unless an intercurrent nonservice-connected cause is determined. The fact that a nonservice-connected systemic disease that could produce similar findings is present, or that other areas of the body not affected by cold injury have similar findings, does not necessarily preclude service connection for such conditions in the cold injured areas. When considering the possibility of intercurrent cause, reasonable doubt, as defined in 38 C.F.R. § 3.102, will always be resolved in the veteran's favor. Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20(b). A. Bilateral pes planus Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). As noted above, when examined at enlistment, the veteran was diagnosed as having third degree pes planus that was not considered disabling. The Board thus concludes that, as a matter of law, the veteran's bilateral pes planus existed prior to service. Crowe v. Brown, 7 Vet. App. 238 (1994). Accordingly, there is no presumption of soundness at service entry with respect to this disability. Regulations provide that when a condition is properly found to have been preexisting because it was noted at entry, the presumption of aggravation provides that a pre-existing injury or disease will be considered aggravated by active service where there is an increase in the disability during such service, unless there is a specific finding that the increase in the disability is due to the natural progress of the disease. The service medical records reflect that the disability became symptomatic and required treatment during his period of active duty. Moreover, this conclusion is consistent with the statements and testimony of the veteran and his in- service colleagues. Therefore, there is evidence that the disability became symptomatic and thus increased in severity in service. In addition, there is no evidence rebutting the presumption of aggravation. Further, there is no basis in the evidence of record that this increase in severity was due to the natural progress of a pre-existing disease process. Indeed, in an October 1995 report, Dr. Whelan opined that this foot disability was related to service, which is consistent with the veteran's statements and testimony and the lay accounts offered by service colleagues. As such, the veteran's bilateral pes planus is presumed to have been aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In addition, the medical evidence shows that the veteran continues to suffer from this disability. Moreover, VA recognizes that the effects of a cold exposure include weak or fallen arches. VA Adjudication Procedure Manual M21- 1, Part VI, par. 11.20. In light of the veteran's cold weather combat service, the pertinent Manual provision showing VA's recognition that pes planus can be related to exposure to cold weather conditions, the lay statements of the veteran's service colleague, and Dr. Whelan's medical assessment, the Board thus concludes that the preponderance of the evidence supports the veteran's claim. Accordingly, service connection for bilateral pes planus is warranted. B. Osteoarthritis of multiple joints In April 2001, the veteran was afforded a formal VA examination. As part of that examination, X-rays were taken of several of the veteran's joints. The X-rays revealed that the veteran has arthritis of the right shoulder, left shoulder, right knee, left knee, right hand and left hand. Further, in numerous lay statements submitted the veteran's former service colleagues and his own statements and testimony, each has reported that the veteran was exposed to extreme cold weather conditions during his period of combat service in Korea. As such, in light of the presumption of service incurrence set forth in 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), and because this injury is consistent with the circumstances, conditions, or hardships of such service," the Board concludes, as a matter of law, that its occurrence has been established. In addition, the Board acknowledges that the April 2001 VA examiner opined that the veteran arthritis of these multiple joints could not definitely be attributed to his cold weather exposure. In doing so, however, he reasoned that the veteran did not suffer a cold injury during service. The Board reiterates, however, that the evidence shows that the veteran did in fact sustain a cold injury, and thus his impression must be rejected because it is based on a mistaken factual premise. In addition, in his September 2000 report, the veteran's private treating physician, Dr. Wassim Saikali noted that the veteran's exposure to sub zero temperatures while serving in Korea and stated that the development of osteoarthritis could be related to that exposure. Moreover, in light of VA's recognition that the veteran faced an increased risk of developing arthritis or other bone abnormalities, see Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20, the Board finds that service connection for arthritis of the right shoulder, left shoulder, right knee, left knee, right hand and left hand is warranted. C. Bilateral fungal infection of the toenails During the November 2003 Board hearing, the veteran testified that he had had foot fungus since shortly after service. He also reported being subjected to cold weather conditions while serving in combat in Korea, and maintained that his chronic foot fungus was attributable to in-service cold injuries. A review of the private and VA medical evidence shows that the veteran was treated for skin problems since the 1960s. Further, in October 1995 report, Dr. Whelan diagnosed the veteran as having neurodermatitis that was related to his period of service. As noted above, the Board has already determined that the veteran suffered this in-service cold injury. In addition, the record shows that the veteran has been diagnosed as having onychomycosis. The Board notes that the only negative evidence against this claim consists of the assessment of the April 2001 VA examiner, who diagnosed the veteran as having a fungus infection of the toenails of both feet but opined that it was not related to a cold injury. In support of this conclusion, the examiner reasoned that there was a forty year gap between the veteran history of cold exposure and the onset of the fungus infection. Because the examiner was under the mistaken belief that the condition did not have its onset until the 1990s, his impression, as it is based on a false factual premise, must be rejected. In light of the foregoing, and VA's recognition that the effects of chronic cold exposure include chronic fungus infection of the feet and disturbances of nail growth, see Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20, the Board finds that service connection for onychomycosis is warranted. ORDER Service connection for bilateral pes planus is granted. Service connection for osteoarthritis of multiple joints, to specifically include the right shoulder, left shoulder, right knee, left knee, right hand and left hand, is granted. Service connection for onychomycosis is granted. REMAND As discussed above, in light of the veteran's in-service exposure to cold weather conditions during his combat service in Korea during the Korean Conflict and VA's acknowledgement that arthritis is a known residual of the chronic effects of that exposure, the Board has granted service connection for arthritis of his shoulders, knees and hands. The Board notes, however, that it is unclear whether the veteran suffers from arthritis of his right or left ankle joint. Accordingly, this matter must be remanded to afford the veteran a pertinent VA examination, which must include having the veteran undergo X-rays of his right and left ankle joints to rule in or exclude a diagnosis of this condition. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2003). Prior to affording the veteran a VA examination, however, the RO must make sure that all the relevant records have been obtained. In this regard, the Board notes that during the hearing, the veteran testified that he has been receiving regular treatment at the Beckley, West Virginia, VA Medical Center. The Board observes, however, that records of his treatment at that facility, dated subsequent to August 2002, have not been associated with the claims folder. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board notes that, pursuant to the VCAA, VA must obtain these outstanding VA medical records, which might contain X-ray findings and/or conclusions that impact directly on the disposition of this matter. See 38 U.S.C.A. § 5103A(b-c) (West 2002); 38 C.F.R. § 3.159(b-c) (2003). In view of the above, this matter is REMANDED to the RO for the following actions: 1. The RO should send the veteran and his representative, a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The letter should explain, what, if any, information and (medical and lay) evidence not previously provided to VA is necessary to substantiate the veteran's claim. The letter should indicate which portion of the evidence, if any, is to be provided by the veteran and which portion, if any, VA will attempt to obtain on his behalf. The letter should also request that the veteran provide any evidence in his possession that pertains to the claim. 2. The RO should contact the veteran and request that he identify all VA and non- VA health care providers that have treated him since service for ankle problems. This should specifically include records of his care, dated since August 2002, at the Beckley, West Virginia, VA Medical Center. The aid of the veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. 3. After associating with the claims folder all available records received pursuant to the above-requested development, the RO schedule the veteran for an appropriate VA examination to determine the nature, extent and etiology of any ankle disability found to be present. It is imperative that the examiner who is designated to examine the veteran reviews the evidence in the claims folder, including a complete copy of this REMAND, and acknowledges such review in the examination report. All indicated testing should be accomplished, and the examiner should identify all ankle pathology found to be present. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not any ankle condition is either related to or had its onset during his period of service. In offering this assessment, the examiner should comment on the provisions of Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20, which are reproduced above. The examiner should set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. 5. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO should readjudicate the veteran's claim in light of all pertinent evidence and legal authority, which must specifically include 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) as well as Veterans Benefits Administration Manual M21-1, part VI, paragraph 11.20. 6. The veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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). 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2