Citation Nr: 1104003 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 07-37 480 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to service connection for a claimed right big toe condition. 2. Entitlement to service connection for a claim right scapula condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The appellant had active service from May 10, 2001 to June 20, 2001. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in August 2007 by the RO. A hearing before the Board was scheduled in February 2010, but the appellant failed to report to the hearing without explanation. Accordingly, the Board will proceed as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2010). The appeal is being 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 The appellant asserts that he incurred a right great toe and right scapula injury when, during training in May or June 2001 he was crushed by a bleacher weighing 500 pounds. He was placed on a physical profile for 14 days and this extended to 4 weeks. A cast was placed on his foot from the toe to the knee. The appellant reports having had two weeks of physical therapy before it was determined that his right scapula had damaged as well. This, he reports, led to his being discharged from the service. It appears to the Board that a complete set of the service treatment records may not be associated with the file. Of record are copies of sick call forms dated in May 2001 and June 2001. The sick call forms note that the appellant had an appointment with a flight surgeon for the left ankle, right shoulder, and right toe. The sick call forms indicate that he was prescribed physical therapy and was scheduled for a bone scan. The forms note that he was placed on a profile for 14 days for a right foot and tendon condition. In a handwritten note, a Chief of Podiatry indicated that the appellant was advised that, if the fracture line involved the interphalangeal joint, it would take 6 to 8 weeks for the joint to heal. The podiatrist further noted that there was a 1 to 3 percent chance of the development of degenerative joint disease in the interphalangeal joint. The podiatrist advised the appellant to use a walker for 3 to 4 weeks with a transition to a walking velvet shoe or boot when tolerated. The Board finds that another attempt should be made by VA to locate other the service treatment records. A search for service treatment records was conducted in March 2002. The RO noted that the records had been in transit since December 19, 2001. In March 2002, the Records Management Center (RMC) indicated that they did not have the records. Another search was requested in April 2002 and in June 2002; the RMC stated that the records were not located. In January 2003, the RMC noted that the record was located at Code 14. In February 2003, the RMC noted that the record needed to respond to the request was not yet retired to Code 13 and any follow-up should be directed to Code 11. In December 2006, a search for service records was requested and no clinical records were found. When, through no fault of the Veteran, records under the control of the Government are unavailable, there is a heightened obligation to assist the Veteran in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Under such circumstances, VA's duty then requires that VA advise the appellant of his right to support his claim by submitting alternate sources of evidence, including service medical personnel statements, or lay evidence, such as "buddy" affidavits or statements. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). If no additional records are located, VA should advise the appellant that service treatment records may be missing and that he may support his claim with alternate forms of evidence. The Board also finds that a medical examination is necessary. While complete copies of the service treatment records are missing, it is clear from the records associated with the claims file that the appellant received medical treatment for conditions involving the right scapula and right big toe. The service treatment records suggest that the appellant may have sustained a fracture to the right foot during initial training. In addition, in a January 2007 statement, a medical doctor indicated that he had chronic right first toe pain and a mildly decreased range of motion likely secondary to the fracture of the proximal phalanx sustained in June 2001. The duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that an examination is needed to obtain medical evidence as to whether the appellant has current disabilities of the right great toe and right scapula due to the injuries in service. The record further shows that the appellant applied for vocational rehabilitation benefits in November 2001. The RO should obtain the vocational rehabilitation folder since this folder may contain evidence pertinent to the issue on appeal. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). The RO should contact the appellant by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any pertinent VA and non-VA treatment records showing treatment for the claimed disabilities from June 2001 to present. The RO should make an attempt to obtain any treatment records identified by the appellant. He also should be informed that he may submit evidence to support his claim including any evidence of in-service treatment for the claimed disabilities. VCAA specifically provides that upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements include notice of degree of disability and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the appellant was not provided with notice of the information or evidence necessary to substantiate the assignment of the degree of disability and the effective date of the disability pursuant to Dingess/Hartman. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should send the appellant corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date as outlined by the Court in Dingess v. Nicholson, 19 Vet. App 473 (2006). 2. The RO should contact the National Personnel Records Center and Records Management Center in St. Louis and any other indicated records repository in order to undertake another search for the appellant's service treatment records. The RO should search all locations including the Code 11 and 14 locations. If deemed appropriate, the RO should contact the National Archives and conduct a search for the service treatment records. All efforts to obtain the service treatment records should be documented in the claims folder. If the service treatment records are not located, the RO should certified such and notify the appellant to afford him with an opportunity to provide other evidence in support his claim. The RO should ask the appellant to submit any copies of service treatment records that he may have in his possession. The RO should advise the appellant of his right to support his claim by submitting alternate sources of evidence, including service medical personnel statements, medical evidence showing treatment of the claimed disabilities during service or soon after service separation, and lay evidence, such as "buddy" affidavits or statements. 3. The RO should obtain any VA vocational rehabilitation records prepared for the appellant and incorporate it into the claims file for review in this matter. 4. The RO should take appropriate steps to contact the appellant and ask him to identify all VA and non-VA medical treatment for the claimed right great toe and right scapula disabilities. The letter should request sufficient information to identify the health care providers, and if necessary, signed authorization, to enable VA to obtain any additional evidence. If the appellant adequately identifies the health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the claims file. The letter should invite him to submit any pertinent medical evidence in support of his claims to VA.. 5. The RO should schedule the appellant for a VA examination to determine nature and likely etiology of the claimed right great toe and right scapula disability. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should report all orthopedic diagnoses pertinent to the right foot and right scapula and all manifestations caused by each disability. Any indicated testing should be performed. The examiner should elicit from the appellant and record a complete clinical history referable to the claimed right foot and right scapula conditions. The examiner should render a medical opinion that addresses whether it is at least as likely as not (50 percent probability or more) that any current right great toe or right scapula disability is due to an injury sustained in service as described by the appellant or another event or incident of his active service. Attention is invited to the service treatment records showing treatment for a right toe and right scapula conditions. The examiner should provide a rationale for all conclusions. If the examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report and provide a rationale for this conclusion. 6. After completing all indicated development to the extent possible, the RO should readjudicate the claims in light of the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive Supplemental Statement of the Case to the appellant and his representative who then should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition 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). _________________________________________________ STEPHEN L. WILKINS 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).