Citation Nr: 0813000 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 03-27 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for flat feet condition (claimed as bilateral arch condition). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran's active service extended from June 4, 1979 to July 9, 1979. This matter comes before the Board of Veterans' Appeals (Board) from a March 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously denied the claim, in June 2004. The veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a motion, the Court remanded the matter to the Board. The remand motion asserted that a medical examination and opinion were needed. In December 2006, the Board remanded the case for examination and a medical opinion. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to obtain all pertinent Federal records. 38 U.S.C.A. § 5103A (West 2002). One problem in this case is that the evidence does not contain a report of the entrance examination. Further, despite evidence that the veteran was released from service because of her foot condition, there are no medical board or physical evaluation board reports in the record. It is quite possible that because the veteran was released from service for medical reasons, the pertinent medical records are in her personnel records. These should be searched and there is no indication in the record that this has been done. Further, although the veteran was examined in compliance with the Board's remand, the examiner stated that he was unable to provide the necessary opinions and failed to fully explain his reasoning for the comments he did provide. Under these circumstances, it is not necessary to have another examination of the veteran, but the file, including the examination report, should be sent for a medical opinion in compliance with the Board's previous remand. See Stegall v. West, 11 Vet. App. 268 (1998). Also, compensation can be paid for an acquired flat foot condition, but a congenital or developmental condition cannot be service-connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.71a (2007). This case requires an opinion as to the nature of the disability. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should ask the National Personnel Records Center (NPRC) for a complete copy of the veteran's personnel file, not just the DA 20. All records pertaining to her discharge from service and any medical records that may be in the personnel file should be particularly requested. 2. After the requested records are received, or the NPRC verifies that such records do not exist, the claims folder should be forwarded to a specialist in foot disorders for review. Any tests or studies necessary to respond to the following questions should be done. If the reviewer cannot respond to the following questions without further examination of the appellant, such examination should be scheduled. The examiner should respond to the following questions with a complete explanation. a. Is it at least as likely as not (a 50 percent or greater probability) that the foot condition noted in service was acquired, rather than being congenital or developmental? b. Is it at least as likely as not that the current foot condition was acquired, rather than being congenital or developmental? c. The veteran entered service on June 4, 1979 and 4 days later, on June 8, 1979, complained that a callus on the left foot was extremely painful when walking. Examination disclosed flat feet. Given the service medical records, the evidence of record, and the current findings: Is it at least as likely as not (probability of 50 percent or better) that her flat foot condition and callus had their onset during her active service? Please explain. If it is not at least as likely as not that her flat foot condition and callus had their onset during her active service, is there clear and unmistakable evidence that the condition existed before service? If so, what would that evidence be? Please explain. d. The veteran entered service on June 4, 1979 and 4 days later, on June 8, 1979, complained that a callus on the left foot was extremely painful when walking. There was a complaint of pain in both feet on June 10, 1979, and a subsequent podiatry referral reflects complaints of pain in both feet while running or jogging. Given the service medical records, the evidence of record, and the current findings: Is there clear and unmistakable evidence that her flat foot condition did not permanently increase in severity during her active service? If so, what would that evidence be? Please explain. 3. Readjudicate the claim for service connection for flat feet. If the determination remain unfavorable to the appellant, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The appellant and her representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ J. A. MARKEY 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).