Citation Nr: 1237193 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-31 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot condition, claimed as a residual cold injury. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA examination of his bilateral foot condition. The action specified in the March 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 The Veteran is seeking entitlement to service connection for a bilateral foot condition, which the Veteran has claimed was caused by cold weather exposure while stationed in Korea from April 1969 to May 1970. Review of his service treatment records do not show evidence of a cold injury to either foot, but the Veteran is competent to report that his skin had been exposed to cold temperatures during his Korea service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, a February 1970 record noted a 4-day history of right metatarsal arch area pain, and the Veteran reported a history of foot trouble on his April 1970 subjective report of medical history. The written comments indicate that his right foot was swollen "T" months ago, but was fine at that time. Post-service private treatment records dated from April 2006 through December 2006 show repeated diagnoses of lichen simplex chronicus, described as erythematous, scaly, xerotic-appearing patches of skin on the Veteran's legs and feet. The Veteran was afforded a VA examination in April 2011. The Veteran reported that he had pain in his feet in service and since his discharge, he has continued to have pain in his feet while walking. The examiner diagnosed the Veteran with mild pes planus of the right foot, as well as a 2cm callus under the head of the left fourth metatarsal. The examiner found no evidence of any skin disorder affecting the Veteran's feet at the time of the examination or any evidence of any cold injury. Unfortunately, this examination is inadequate for several reasons. First, the examiner failed to address whether the Veteran's pes planus of the right foot is related to evidence of right foot pain in service, including a February 1970 complaint of right metatarsal arch pain and the Veteran's lay statements. While the Veteran framed his complaint as a claim for a bilateral foot condition due to residuals of a cold injury, the Board notes that a veteran generally is not competent to diagnose his medical condition; he is only competent to identify and explain the symptoms that he observes and experiences. Consequently, a claim that identifies a single diagnosis cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors including the veteran's description of the claim; the symptoms the veteran describes; and the information the veteran submits or VA obtains in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran's claim should be construed broadly as one for any bilateral foot disability that had onset in service or was caused by the Veteran's active service, to include not only a cold injury but also pes planus. Additionally, because the examiner found no evidence of a skin disability at the time of the April 2011 examination, he failed to offer an opinion as to whether it is at least as likely as not the Veteran's lichen simplex chronicus was caused by or related to the Veteran's active service, to include as due to a cold injury. However, the Board notes that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of the claim . . . even thought the disability resolves prior to the Secretary's adjudication of the claim". See McCain v. Nicholson, 21 Vet. App. 319 (2007). It is unclear from the record whether the skin condition the Veteran was treated for in 2006 was an acute condition that resolved without any recurrence, or whether this is a chronic condition that was simply in remission when the Veteran was last examined. Accordingly, the Board finds that a remand is required to clarify this issue. On remand, any available VA treatment records from the North Texas Health Care System after August 2005 should be associated with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Any available VA treatment records from the North Texas Health Care System after August 2005 should be associated with the Veteran's claims folder. 2. Once this is done, the RO should schedule the Veteran for a VA examination of his feet. The VA examiner is asked to render an opinion as to whether it is at least as likely as not (fifty percent or greater) that the Veteran's bilateral foot condition, which can include a cold injury, a skin condition, or some other disability of the feet, had onset in service or was caused or aggravated by the Veteran's active military service, to include his reported exposure to cold. The examiner is asked to specifically discuss whether the Veteran's right foot pes planus had onset in service or was caused or aggravated by the Veteran's active military service. The examiner is also asked to opine whether the Veteran's lichen simplex chronicus is a chronic condition and, if so, whether it is at least as likely as not related to a cold injury in service. The examiner must consider the Veteran's lay testimony in reaching his or her conclusions. A rationale for his or her opinion should be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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. 2011). _________________________________________________ MICHELLE L. KANE 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) (2011).