Citation Nr: 1038896 Decision Date: 10/18/10 Archive Date: 10/22/10 DOCKET NO. 04-23 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for corns and calluses of the bilateral feet. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John Cameron, Attorney at Law ATTORNEY FOR THE BOARD K. A. Kennerly, Counsel INTRODUCTION The appellant served on active duty from June 1974 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. Procedural History In June 2003, the RO [implementing the May 2003 Board determination] granted the appellant's claim of entitlement to service connection for corns and calluses of the feet, assigning a 10 percent disability rating, effective March 30, 2000. The appellant filed a Notice of Disagreement (NOD) with this assignment as well as with the effective date in June 2003. An April 2004 rating action increased the appellant's disability rating for his corms and calluses from 10 percent to 30 percent disabling, effective March 30, 2000. Thereafter, a Statement of the Case (SOC) was issued in April 2004 and the appellant timely perfect his appeal in May 2004. In February 2004, the RO denied the appellant's claim of entitlement to service connection for PTSD. The appellant submitted a NOD with this determination in May 2004 and a SOC was issued in December 2004. The appellant timely perfected his appeal in January 2005. In September 2007, the Board: denied the claim of entitlement to an increased disability rating in excess of 30 percent for corns and calluses of the feet; denied the claim of entitlement to an effective date prior to March 30, 2000, for the grant of service connection for corns and calluses of the feet; and denied the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The appellant subsequently submitted a Notice of Appeal to the United States Court of Appeals for Veterans Claims (the Court), indicating his disagreement with the denial of his claims of entitlement to an increased disability rating for corns and calluses of the feet and entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Court issued a February 2009 Order vacating, in part, the September 2007 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR). 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 on his part. REMAND After a thorough review of the appellant's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claims, consistent with the February 2009 JMR. Acquired Psychiatric Disorder Pursuant to the February 2009 JMR, the Board finds that the appellant has constructively raised the claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, as secondary to his service- connected corns and calluses of the bilateral feet. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110, 1131 (West 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b) (2009). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for disability that is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310(a) (2009). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. Here, it is clear that the appellant has a current diagnosis of depression and is also service-connected for corns and calluses of the feet. The only remaining question is that of medical nexus. As the Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. Thus, the appellant's claim must be remanded for another VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder. Corns and Calluses of the Feet The Board notes that the appellant last underwent a VA feet examination in July 2005. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2010). As the Court has vacated the September 2007 Board decision, a new VA examination is required to determine the current state of the appellant's feet. Additional Evidence Furthermore, the Board notes that the appellant's private attorney has submitted substantial additional evidence following the issuance of the February 2009 JMR. In correspondence dated in September 2010, the appellant's private attorney specifically requested that the appellant's claims file be returned to the agency of original jurisdiction (AOJ) for initial review. Accordingly, the Board must remand the claims. See 38 C.F.R. § 20.1304 (2010). Accordingly, the case is REMANDED for the following action: 1. The RO is requested to provide the appellant with a new notice letter of VA's duties to notify and assist him, compliant with current caselaw. This notice letter should also request the appellant state whether he has received any additional treatment for his claimed disabilities from private or VA medical facilities since March 2007. If so, the RO is requested to obtain the appropriate waivers and obtain any outstanding private or VA treatment records. Any correspondence received in association with these requests should be memorialized in the appellant's claims file. 2. Thereafter, the appellant should be scheduled for a new VA feet examination with an appropriate expert. The VA examiner should thoroughly review the appellant's VA claims file in conjunction with a complete copy of this REMAND, and note this has been accomplished in the examination report. The VA examiner is requested to thoroughly explain the current state of the appellant's corns and calluses. 3. The appellant should also be scheduled for a VA psychiatric examination with an appropriate expert to determine the nature and etiology of any diagnosed psychiatric disorder, to include depression and PTSD. The VA examiner should thoroughly review the appellant's VA claims file in conjunction with a complete copy of this REMAND, and note this has been accomplished in the examination report. The VA examiner should specifically address the following: (a) State any psychiatric diagnoses demonstrated by the appellant. (b) If the appellant has a current psychiatric diagnosis, state whether it is at least as likely as not that such diagnosed condition is the result of (a) a disease or injury in service, (b) caused by the appellant's service-connected corns and calluses of the feet and (c) aggravated beyond the natural progression of the disorder by the service-connected corns and calluses of the feet. 4. Thereafter, the RO should review the claims file to ensure that the foregoing requested development has been completed. In particular, the RO should review the VA examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a Supplemental SOC should be provided to the appellant and his attorney. After they have had an adequate opportunity to respond, this issue should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2010). 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 2002 & Supp. 2010). _________________________________________________ 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. See 38 C.F.R. § 20.1100(b) (2010).