Citation Nr: 1126763 Decision Date: 07/19/11 Archive Date: 07/29/11 DOCKET NO. 07-38 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1 .Entitlement to service connection for postoperative residuals of a right foot tibial sesamoidectomy. 2. Entitlement to a temporary total rating for this disability under 38 C.F.R. § 4.30 for convalescence following this right foot tibial sesamoidectomy in March 2005. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty in the military apparently from April 1991 to November 1994. This appeal to the Board of Veterans' Appeals (Board) is from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The RO in Montgomery, Alabama, however, certified the appeal to the Board. In his December 2007 Substantive Appeal to the Board (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board. The RO scheduled this hearing for April 6, 2010, but he withdrew this hearing request as evidenced by a statement in support of claim (VA Form 21-4138) received on that same date and indication of this on the copy of the hearing notification letter in the file. 38 C.F.R. § 20.704(e) (2010). He asked that the Board, instead, render a decision based on the evidence of record. Since, however, they require further development before being decided on appeal, the Board is remanding the claims to the RO via the Appeals Management Center (AMC). REMAND The Veteran alleged in his December 2007 Substantive Appeal (VA Form 9) that his sesamoiditis was caused while on active duty in the U.S. Marines Corps. So this claim is predicated on the notion that he directly incurred this condition in service, although he did not undergo the surgery (right foot tibial sesamoidectomy) until later, after service, in March 2005. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, to establish entitlement to service connection, there must be: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a relevant disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In requesting a VA examination concerning this claim, it appears the RO also has considered the issue of entitlement to service connection for this right foot disability on the alternative premise that it, instead, is secondary to the Veteran's already service-connected right ankle disability. Secondary service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes situations where a service-connected disability has chronically (meaning permanently) aggravated a nonservice-connected condition, but in this latter circumstance the Veteran is only compensated for the degree of disability over and above that existing prior to the aggravation. 38 C.F.R. § 3.303(b); Allen v. Brown, 7 Vet. App. 439 (1995). To this end, the RO requested a medical opinion regarding the etiology of the Veteran's right foot disability - including especially in terms of whether it was caused or aggravated by his service-connected right ankle disability. He had this requested VA compensation examination in May 2005 for this opinion, after which the examiner concluded the service-connected right ankle disability was not caused by the nonservice-connected right foot disability. But, significantly, this was not the question the RO posed and, indeed, is the exact opposite of what has to be shown to establish entitlement to service connection on a secondary basis. That is to say, the determinative issue is whether the service-connected right ankle disability either caused or is aggravating the right foot disability, not vice versa. And, even still, this examiner also did not comment on this alternative possibility of aggravation (even aside from not commenting correctly on the causation aspect). Medical evidence is generally needed to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); McQueen v. West, 13 Vet. App. 237 (1999); and Velez v. West, 11 Vet. App. 148, 158 (1998). So additional medical comment is needed before deciding this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). The Court has held that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). See also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); and Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). Moreover, the Board notes that the May 2005 opinion was entirely conclusory in that the examiner did not provide any underlying rationale, although requested to. He also failed to comment on the medical treatise evidence the Veteran had submitted. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the Board may not rely on a medical examiner's conclusory statements if they lack supporting analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (stating that Board may not assess probative value of "a mere conclusion by a medical doctor"); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning). The Veteran's claim for a temporary 100 percent rating for his right foot disability, under 38 C.F.R. § 4.30, as a result of his need to convalesce following the surgery for this foot in March 2005, is therefore "inextricably intertwined" with his claim for service connection since for the same underlying disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one of the claims cannot be rendered until a decision on the other), See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Hoyer v. Derwinski, 1 Vet. App. 208 (1991); and Holland v. Brown, 6 Vet. App. 443, 446 (1994) (collectively indicating these types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters). See, too, Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require the claims be adjudicated together.). Lastly, the Board sees the claims file does not contain official verification of the dates of the Veteran's service, such as would be indicated on a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). The RO/AMC therefore needs to verify his dates of service. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Verify the dates of the Veteran's active military service, such as by obtaining a copy of his DD Form 214 or other documentary evidence providing this confirmation. 2. Then, if still available, forward the claims file to the VA examiner that performed the May 2005 evaluation of the Veteran and ask that he submit an addendum statement concerning the etiology of the Veteran's right foot disability - including in terms of the likelihood (very likely, as likely as not, or unlikely) it: a) was directly incurred in service, such as caused by his military training, or alternatively b) that it was caused or is being aggravated by his service-connected right ankle disability. [Note: this VA examiner's previous comments concerning any potential relationship between these conditions and the Veteran's military service only addressed whether the nonservice-connected right foot disorder "caused" the service-connected right ankle disability, not whether the reverse is true (which is what is actually required for secondary service connection), whether the service-connected right ankle disability instead "caused" the nonservice-connected right foot disorder and/or whether the service-connected right ankle disability is aggravating the nonservice-connected right foot disorder]. In making these determinations, the examiner should consider the medical treatise evidence the Veteran submitted in support of his claim. If, for whatever reason, it is not possible or feasible to have this same VA examiner provide this further comment, then have someone else comment that is equally qualified to provide this necessary additional medical opinion. If this latter situation arises, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed to make these remaining determinations. Whoever is designated to provide this additional comment must discuss the rational of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. And to facilitate providing this additional comment, it is imperative the designated examiner review the claims file (or, in the case of the prior examiner, refamiliarize himself with the pertinent evidence in the claims file) for the relevant medical and other history. *If reexamination is necessary, the Veteran is hereby advised that failure to report for this additional VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Upon completion of this additional development, readjudicate the claims in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send him and his representative another supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2010). _________________________________________________ Keith W. Allen 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) (2010).