Citation Nr: 1127277 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-30 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a right foot disorder, to include tendonitis and plantar fasciitis. 2. Entitlement to service connection for a left foot disorder, to include tendonitis and plantar fasciitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh INTRODUCTION The Veteran served on active duty from May 1977 to May 1981 and from April 1982 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the RO in North Little Rock, Arkansas. In June 2009, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. This case was previously Remanded by the Board in October 2009. For the reasons that follow, the case is not yet ready for disposition. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2010). The Court has held that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded the case in October 2009, in part, for a VA examination and opinion as to whether it is at least as likely as not that the Veteran's current bilateral foot disorders. Referencing his current diagnoses of tendonitis and plantar fasciitis, the Board sought to clarify a November 2006 VA examination opinion that failed to address whether these disabilities were related to the Veteran's active service, to include two separate injuries to his feet and road marches. On remand, the April 2010 VA examiner specifically stated that there was no evidence of residual disability stemming from an in-service wherein the Veteran dropped a battery on his foot. He said there was no clinical or X-ray evidence that suggested residuals, to include tendonitis, of that injury. However, he failed to clearly address whether the Veteran's tendonitis and/or plantar fasciitis were etiologically related to active service. Further, while a March 2010 private medical report from Conway Orthopedic clearly diagnosed tendonitis and plantar fasciitis, the April 2010 examination report did not address the etiology of either condition. Instead, without identifying any disability of the feet, the examiner ambiguously stated that he saw no relationship between the Veteran's active service and his current complaints. He also provided no rationale for this negative opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes to the probative value to a medical opinion). Based on the foregoing, further clarification is needed from the April 2010 VA examiner regarding (1) what he observed at the examination, (2) an opinion as to whether it is at least as likely as not that the Veteran's current bilateral foot disorders are related to service, and (3) rationale for all opinions. If the April 2010 VA examiner is not available, then the Veteran should be afforded a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Seek clarification from the April 2010 VA examiner as detailed below. If the April 2010 VA examiner is unavailable, afford the Veteran the appropriate examination to determine the nature, extent, onset and etiology of his current bilateral foot disorders, including tendonitis and plantar fasciitis. The claims folder should be made available to and reviewed by the examiner and such review should be noted in the examination report. All indicated studies should be performed and all findings should be reported in detail. The examiner (whether the April 2010 VA examiner or a new VA examiner) should render an opinion as to the nature of any current right or left foot disorder, including tendonitis and plantar fasciitis, and whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right or left foot disorder had its onset in or is otherwise etiologically related to service. The examiner must address the Veteran's report of injuring his feet along with subjecting his feet to the trauma of road marches. The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide a requested opinion without resorting to mere speculation such should be stated with supporting rationale. 2. The RO/AMC must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2010). 3. Thereafter, the RO should re-adjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and the representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issues, as well as a summary of the evidence received since the issuance of the last SSOC. An appropriate period of time should be allowed for response. 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. 2010). _________________________________________________ MICHAEL A. HERMAN 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).