Citation Nr: 1017697 Decision Date: 05/12/10 Archive Date: 05/26/10 DOCKET NO. 01-08 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from August 1989 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A Board videoconference hearing was held at the RO in January 2002. In a March 2002 decision, the Board reopened the Veteran's claim of service connection for a bilateral foot disability, and remanded that issue along with the issue of an increased rating for shin splints. In May 2003, the Board remanded both issues on appeal for procedural purposes and to obtain additional clinical information. In May 2004, the Board denied entitlement to an increased rating for bilateral shin splints and remanded the issue of entitlement to service connection for a bilateral foot disability. In July 2005, the Board denied the issue of entitlement to service connection for a bilateral foot disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision in April 2007 vacating the Board's decision and remanding the case. Judgment was entered in May 2007. Subsequently, the Secretary of the VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), which affirmed the Court's decision and remanded the case. In October 2008, the Board remanded the issue for compliance with the Court Memorandum Decision. The Veteran testified at a personal RO hearing in December 2009. 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 Veteran is seeking service connection for bilateral foot disability. Subsequent to the prior Board remand, at the December 2009 RO hearing, it appears that the Veteran testified that he had recently received treatment from a private podiatrist, Dr. Pittle. The claims file already includes records from Dr. Pittle from July 1996 to September 1997. However, given the Veteran's testimony regarding recent treatment (apparently in 2008 or 2009), appropriate steps to obtain any additional treatment records from Dr. Pittle. The Board regrets further delay, but it appears that the Veteran has identified additional medical records which must be obtained to fully assist him with his claim. Further, the Veteran was afforded VA examinations in July 2003, October 2003 and June 2004. In an addendum to the July 2003 VA examination, the examiner found that the Veteran's plantar fasciitis was not related to his military service. However, he failed to provide any rational for his opinion. Further, while they do offer opinions with detailed rationals as to whether the Veteran's pre-existing pes planus was aggravated during service, the remaining VA examinations do not offer an opinion as to whether the Veteran's plantar fasciitis was directly related to military service. Thus, it appears that the Veteran has not received a sufficient VA examination and opinion concerning this matter. See Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Therefore, in light of the need to remand for additional private treatment records, the Board finds that the Veteran should be afforded another VA examination to determine whether his plantar fasciitis is directly related to service. Lastly, the Board observes that the Veteran's private attorney representative withdrew his legal representation in December 2009. Thus, the RO should also contact the Veteran and notify him of his right to appoint another representative. Accordingly, the case is REMANDED for the following actions: 1. Appropriate action should be taken to obtain treatment records from Dr. Pittle from September 1997 to the present. 2. Appropriate action should be taken to notify the Veteran of his right to appoint another representative and the manner in which to do so. 3. The Veteran should be scheduled for a VA examination to determine the nature, extent and etiology of any currently manifested bilateral foot disability. The claims file must be made available to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current bilateral foot disability, with the exception of the pre-existing pes planus, is directly related to service. A detailed rational for all opinions expressed should be provided. 4. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for any opinion expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 5. After completion of the above and any further development deemed necessary, the RO should review the expanded record and determine if the benefit sought can be granted. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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. 2009). _________________________________________________ ALAN S. PEEVY 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) (2009).