Citation Nr: 0810885 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 02-13 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from February 1959 to January 1961. Procedural history This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2001 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In the September 2001 rating decision, service connection was denied for a bilateral foot disorder and a skin disorder. The veteran perfected an appeal of those denials. In December 2002, the Board denied the veteran's claims. In May 2007, the United States Court of Appeals for Veterans Claims (the Court) vacated the Board's decision and remanded this case to the Board. It appears that while the veteran's initial claims of entitlement were pending at the Court, the veteran again filed claims of entitlement to service connection for a bilateral foot disorder and a skin disorder. In an unappealed December 2004 rating decision, the RO declined to reopen the claims. In an unappealed February 2006 rating decision, the RO again denied reopening. The 2004 and 2006 RO rating decisions were predicated on the December 2002 Board decision denying service connection for these disorders being final. Because of the Court's decision vacating the December 2002 Board decision, the original claims are effectively reinstated and the subsequent denials in 2004 and 2006 are moot. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The Court decision In its now vacated December 2002 decision, the Board determined that the veteran did not have a current bilateral foot disorder or a current skin disorder. See, e.g., Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may not be granted unless a current disability exists]. In its May 2007 decision, the Court held that the Board impermissibly relied on a combination of unrelated pre- and post-decisional communications, specifically a June 2001 letter, the September 2001 rating decision, and a February 2002 statement of the case (SOC), in considering whether there was compliance with the Veterans Claims Assistance Act of 2000 (VCAA). See the Court decision, page 4. The Court further held that VA's failure to notify the veteran that he could submit lay evidence of persistent or recurrent symptoms of disability prevented him from meaningfully participating in the adjudication of his claims because he did not have the opportunity to submit lay evidence of persistent and recurrent symptoms of his claimed disabilities. The Court noted that the submission of credible evidence of such symptoms could have led to VA providing him a medical examination under the low threshold established by 38 U.S.C.A. § 5103A. Id., page 6. The Court vacated the Board's December 2006 decision and remanded the veteran's claims in light of its analysis. Notification The Board finds that the Court's finding of a notice error with respect to lay evidence has been rendered moot by communications from the veteran subsequent to the December 2002 Board decision. As was noted in the Introduction section of this remand, after the Board's December 2002 decision, the veteran had attempted twice to reopen these claims. In a VA Form 21-526 (veteran's application for compensation and/or pension) received in January 2005, the veteran reported persistent and recurrent symptoms of his claimed disabilities. Specifically, he stated that he has no circulation in his feet, that he has hammertoes, that he cannot stand on his feet for a prolonged time, and that he has intermittent dry spots on his face. In any event, while this case is in remand status the veteran will be afforded an additional opportunity to present lay evidence of persistent and recurrent symptoms at his examinations. Reasons for remand VA examination The Court has held that, in situations in which there is competent evidence of a current disability and evidence indicating an association between the claimant's disability and his active service, in order to fulfill its statutory duty to assist the veteran in the development of his claim VA is to obtain a medical opinion as to whether there is a nexus between the claimed disability and his active service. See Charles v. Principi, 16 Vet. App. 370 (2002). The veteran's service medical records reflect that in October 1959 he was treated for a left hammertoe and that later that month he was hospitalized for pityriasis rosea. As was described above, the veteran has recently presented to the RO his own statements as to his current skin and foot symptomatology. In light of the lay evidence of persistent and recurrent symptoms of his claimed disabilities and the evidence showing in-service skin and foot symptomatology, the Board believes that medical examinations are necessary to determine the current natures of the foot and skin disabilities and that medical nexus opinions addressing the veteran's theory of entitlement are also necessary. VA treatment records In a November 2005 VA Form 21-4142, the veteran reported receiving VA treatment. However, he did not identify the particular VA facility or the dates of treatment. Further clarification about the veteran's VA treatment is necessary. Non-VA treatment records In the November 2005 VA Form 21-4142, the veteran reported receiving treatment at JSP. The RO has not attempted to obtain those records. Accordingly, this case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should ask the veteran to identify the locations and dates of all VA treatment for his bilateral foot disorder and his skin disorder. VBA should attempt to obtain any identified records pertaining to the veteran. Any treatment records so obtained should be associated with the veteran's claims file. 2. After obtaining any required consent from the veteran, VBA should attempt to obtain all records from JSP pertaining to the veteran. Any records so obtained should be associated with the veteran's VA claims folder. 3. VBA should schedule the veteran for an examination to determine the existence, nature, and etiology of any current foot disorder. After examination of the veteran and review of all pertinent medical records, the examiner should determine whether the veteran has a current foot disorder. If a current foot disorder is diagnosed, the examiner should provide an opinion as to whether it is as least as likely as not that the veteran's foot disorder is related to his military service, to include the documented left hammertoe in service. The report of the examination should be associated with the veteran's VA claims folder. 4. VBA should schedule the veteran for an examination to determine the existence, nature, and etiology of any current skin disorder. After examination of the veteran and review of all pertinent medical records, the examiner should determine whether the veteran has a current skin disorder. If a current skin disorder is diagnosed, the examiner should provide an opinion as to whether it is as least as likely as not that the veteran's skin disorder is related to his military service, to include the documented pityriasis rosea in service. The report of the examination should be associated with the veteran's VA claims folder. 5. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should then review the record and readjudicate the veteran's claims. If the decision remains unfavorable to the veteran, in whole or in part, a supplemental statement of the case (SSOC) should be prepared. The veteran and his representative should be provided with the SSOC and an appropriate period of time should be allowed for response. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).