Citation Nr: 1133720 Decision Date: 09/12/11 Archive Date: 09/22/11 DOCKET NO. 09-34 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for residuals of a left foot crush injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to June 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In October 2010, the Veteran testified at hearing before the undersigned, via videoconference. A transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he suffered an injury to his left foot when his foot was run over by a plane on the deck of the U.S.S. Forrestal. The Board determines that a remand is necessary so that additional treatment records may be obtained and a VA examination scheduled. With respect to the treatment records, the Board observes that the Veteran receives regular VA treatment for his lower extremities, including his left foot. The most recent treatment record is dated in July 2009 and is from within the Iowa City VA Medical Center (VAMC). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Thus, all VA treatment records from the Iowa City VA facility dated from July 2009 onward must be obtained. Additionally, the record indicates that the Veteran has been in receipt of Social Security Disability benefits since March 1990. Records related to his application for these benefits are not in the claims file and may be relevant to the claim. When VA has notice prior to the issuance of a final decision of the possible existence of certain records and their relevance, the Board must seek to obtain those records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Consequently, a request must be made of the Social Security Administration (SSA) for records obtained in association with the Veteran's application for disability benefits. Finally, the Veteran has provided personal statements and testimony regarding his claimed left foot injury in service, as well as statements of service members whom have been verified also served with him on the U.S.S. Forrestal. Lay persons can attest to factual matters of which they have first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran and his service "buddies" are capable of providing competent evidence that the incident involving the plane, and the Veteran being run over occurred. Therefore, even if the Veteran's service treatment records do not directly discuss such incident, the Board finds that there is competent evidence of an in-service event or injury. Further, the current treatment evidence shows complaint, treatment, and diagnosis with regard to the left foot, and the Veteran has provided statements with respect to how the reported injury damaged his left foot and resulted in his current disorders. Accordingly, there is also evidence of a current disability. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA has a duty to schedule a VA examination to assess the etiology of the Veteran's current left foot disorders. Accordingly, the case is REMANDED for the following action: 1. Request all VA treatment records for the Veteran from the Iowa City VAMC dated from July 2009 to the present. All requests and responses, positive and negative, should be associated with the claims file. 2. Request all records from the SSA associated with the Veteran's application and award of disability benefits. All requests and responses, positive and negative, should be associated with the claims file. 3. Schedule the Veteran for a VA examination in order to ascertain the etiology of his current left foot disorders. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or greater) that any left foot disorder exhibited by the Veteran currently, i.e., at the time he filed his claim in May 2006 to the present, is causally or etiologically related, in whole or in part, to his described left foot injury, in service or is otherwise related to his military service? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 4. After completing the above actions and any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's service connection claim should be readjudicated, to include all evidence received since the July 2009 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MILO H. HAWLEY 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).