Citation Nr: 1237199 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 01-08 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION At the outset, the Board notes that during the pendency of the appeal, the Veteran's original claims folder was lost. The file has been rebuilt from the certified record sent to the United States Court of Appeals for Veterans Claims (Court) and Virtual VA (VA's electronic database storage). The information contained in this Remand is compiled from a review of the rebuilt claims folder, prior Board decisions, and Virtual VA. As will be explained in greater detail below, this is one of the reasons for Remand. The Veteran had active duty service from August 1989 to August 1992. This remaining matter on appeal is before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony before the Board in January 2002. A transcript has been associated with the claims folder. It also appears the Veteran presented testimony before the RO in December 2009; the transcript has not been associated with the rebuilt claims folder. In a March 2002 decision, the Board reopened and remanded the Veteran's claim of service connection for a bilateral foot disability. The matter was once again remanded in May 2003 and May 2004. In July 2005, the Board denied the issue of entitlement to service connection for a bilateral foot disability. The Veteran appealed the decision to the Court. The Court issued a Memorandum Decision in April 2007 vacating the Board's decision and remanding the case. Judgment was entered in May 2007. Subsequently, the Secretary of the VA appealed this decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit), which affirmed the Court's decision and remanded the case. In October 2008, the Board remanded the issue for compliance with the Court Memorandum Decision. In May 2010, the Board remanded the claim to the RO for further development and adjudication. 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 As noted in the Introduction, the Veteran's original claims folder was lost and has since been rebuilt. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's decision to remand this case again has been undertaken with these heightened duties in mind. In the April 2007 Memorandum Decision, which was affirmed by the Federal Circuit, the Court vacated the Board's decision and remanded the case because the Veteran had not received sufficient notice under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. § 3.102, 3.156(a), and 3.326(a). The Court found that the prior July 2003 and May 2004 VCAA letters failed to advise the Veteran of the need to submit medical nexus evidence relating his current foot disabilities to service or of the need to submit medical evidence showing that his preexisting pes planus was aggravated by service. In October 2008, the Board remanded the claim, per Court Order, for the RO to provide a VCAA letter informing the Veteran of the information and evidence necessary to substantiate the issue on appeal to ensure full compliance with VCAA notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi 18 Vet App. 112 (2004). The Board also instructed the RO to provide notice in accordance with the decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. If a VCAA letter was sent to the Veteran after the October 2008 Board remand, it has not been associated with the rebuilt claims folder. Thus, to ensure the duty to notify has been met, the RO should once again provide a VCAA letter as instructed. In May 2010, the Board remanded the matter to obtain any additional private treatment records of the Veteran from Dr. Pittle. The Board noted that the Veteran testified before the RO in December 2009 (transcript not associated with rebuilt folder) that he had received recent treatment (2008 or 2009) from a private podiatrist, Dr. Pittle. In May 2010 and October 2011, the RO sent letters to the Veteran in attempts to obtain any additional treatment records from Dr. Pittle. The rebuilt claims file only includes records from Dr. Pittle from July 1996 to September 1997. The RO noted that the Veteran failed to respond to their request for records; however, given that the Veteran's claims folder was lost and perhaps any communications from him may have also been misplaced, the Board feels that an additional attempt must be made to obtain medical records identified by the Veteran to fully assist him with his claim. Also in May 2010, the Board instructed the RO to schedule the Veteran for a new VA examination to determine whether the Veteran's plantar fasciitis was directly related to military service. The Veteran was afforded an examination in June 2010. The examiner diagnosed the Veteran with plantar fasciitis and a "bilateral foot condition." The examiner opined "bilateral foot disability is less likely as not (less than 50/50 probability) caused by or a result of foot problems. The examiner found that there was no question the Veteran had chronic plantar fasciitis and that the foot sprain was the "beginning of the plantar fasciitis however there [was]no documentation of further inservice treatment." The examiner then concluded "[t]herefore there is a 50/50 probability of a causal relationship." First, without a specific diagnosis, the Board is unclear what "foot condition" the examiner is referencing. Next, as delineated above, the opinion contains contradictory statements regarding the casual relationship of plantar fasciitis and an incident of service. A new opinion must be sought, which answers the questions posed in 2010 and below. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Additionally, a review of the record shows that the Veteran has also alleged that his pes planus condition is aggravated by his service-connected shin splits, which has not been addressed by prior VA examinations. Such opinion must be sought upon remand. The examiner is directed to answer the specific questions set forth in the numbered paragraphs below. The most recent VA outpatient treatment records associated with the Virtual VA record are dated in April 2011. Updated records of any subsequent treatment the Veteran has received for the claimed bilateral foot disability are pertinent evidence that must be secured. 38 C.F.R. § 3.159(c)(2). Lastly, the Board once again observes that the Veteran's private attorney representative withdrew his legal representation in December 2009. Thus, the RO should also contact the Veteran and notify him of his right to appoint another representative. Accordingly, the case is REMANDED for the following actions: 1. The RO should ensure that all due process requirements in these matters under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) are met. The RO must notify the Veteran (and his representative, if any) of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim of service connection for a bilateral foot disability; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, the letter should advise the Veteran of the need to submit medical nexus evidence relating his current foot disabilities to service as well as medical evidence showing that his preexisting pes planus was aggravated by service or a service-connected disability. Further, the VCAA notice should also include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined in Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). He must be afforded a reasonable opportunity to respond. 2. The RO should ask the Veteran to identify any (and all) providers of all evaluations and/or treatment he has received for the foot disability at issue (records of which are not already associated with the claims file), and to provide releases for VA to obtain records of any such private evaluations and/or treatment, to include from Dr. Pittle dated from 1997 to the present. The RO should secure for the record copies of the complete VA outpatient records of the Veteran since April 2011. 3. The RO should take the appropriate action to notify the Veteran of his right to appoint another representative and the manner in which to do so. 4. After the development sought above is completed, the RO should arrange for the Veteran to be afforded an examination by an appropriate provider to determine the existence, nature, and likely etiology of the claimed bilateral foot disability. The entire record must be reviewed by the examiner in conjunction with the examination. If an examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA (but not otherwise in the record) must be printed and associated with the claims file so that they are available to the examiner's review. Any indicated tests or studies must be completed. The examiner should describe all findings in detail. Based on examination of the Veteran and review of his record, the examiner should provide opinions that respond to the following: (a) please opine whether or not the Veteran's plantar fasciitis is at least as likely as not (50% or better probability) incurred or aggravated in service; and (b) please opine whether or not the Veteran's pes planus is at least as likely as not (50% or better probability) aggravated by his service-connected shin splints. The examiner must explain the rationale for all opinions, citing to supporting factual data. 5. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for any opinion expressed. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 6. The RO should arrange for any further development suggested by the results of that sought above. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran (and his representative, if any) should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran 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). _________________________________________________ ALAN S. PEEVY 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).