Citation Nr: 1237472 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 04-38 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for residuals of bone removal from the bilateral feet. (The claim of entitlement to the waiver of recovery of overpayment of VA educational benefits in the calculated amount of $3,000 is the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to July 1984, and from December 2002 to August 2003, as well as had an additional period of reserve duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which amongst other actions denied a claim for service connection for residuals of bone removal from the bilateral feet. The Board previously considered this appeal in a November 2008 decision/remand, denying service connection for posttraumatic stress disorder (PTSD), and remanding amongst other issues, the present matter. Thereafter, through a December 2011 rating decision the RO granted then pending claims on appeal for service connection for a right thumb condition, and hypertension. The Board's November 2008 decision/remand also indicated that there was an informal claim raised through the record for an increased evaluation for a lumbosacral degenerative disc condition at L5-S1. However, despite the direction from the Board to the RO to adjudicate this claim as the Agency of Original Jurisdiction (AOJ), the RO has not yet undertaken the matter. Hence, this claim is again referred to the AOJ for appropriate action and consideration. As a further preliminary matter, the Board observes that the Veteran in January 2012 correspondence has raised the issue of why, when awarded an increased evaluation to 30 percent for service-connected headaches effective December 16, 2010, he did not receive actual disability compensation until January 1, 2011. The reason for this discrepancy lies in the fact that under VA law and procedure, payment of benefits begins the first day of the month following the assigned effective date. See 38 C.F.R. § 3.31 (2011). The Veteran also raises the concern that the December 2011 RO rating decision granted service connection for a right thumb condition with an evaluation of 10 percent effective August 16, 2003, but did not actually provide for payment corresponding to the 10 percent rating as of the specified effective date. The Board observes in this regard that while the Veteran was indeed awarded a 10 percent evaluation for this condition retroactive to August 16, 2003, under the VA provisions for combined ratings for several service-connected disabilities (see combined ratings table at 38 C.F.R. § 4.25) the Veteran's overall level of disability compensation remained at the 40 percent level. Here, the RO properly factored the award of 10 percent for a right thumb condition into the Veteran's combined rating. Should this review and discussion on the part of the Board not fully answer the Veteran's inquiry into whether he is receiving the full amount of disability compensation due, then he is encouraged to pursue this matter with the Regional Office. Moreover, in February 2012 the Veteran changed his designated representative in this matter to reflect the appointment of the Disabled American Veterans. Through a July 2012 written brief presentation, the Veteran's representative identified a discrepancy on the prior hearing notification letter which ostensibly was confusing in identifying the actual hearing date. To clarify the situation, the Board sent September 2012 correspondence to the Veteran asking him if he still wanted a hearing before the Board. He has since responded that he does not wish to have a hearing of any type. Thus, the Board will proceed with the consideration of this case. 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 Board finds that further development of this case is warranted, to consist of a supplemental medical opinion on the etiology of the claimed bilateral foot condition. Service connection may be granted for any current disability that is the result of a disease contracted or an injury incurred while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection is also available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under VA law, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. Moreover, VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The Veteran acknowledges that he had surgery performed on the bilateral feet a few years prior to military service, but contends that his condition of the bilateral feet measurably worsened while on active duty. Review of the service treatment records (STRs) shows that upon the Veteran's March 1984 service entrance examination he checked the appropriate designation for having had "foot trouble." The examination report further reflects a physician's notation that the Veteran had surgery to the bilateral feet for a bone deformity in March 1980. Further noted was pes planus, second degree, with no symptoms, and cicatrices on the medial aspects of the feet. Subsequent clinical records indicate that in May 1984, the Veteran was seen for complaints of pain in the bilateral feet, with no history of trauma. The assessment was pes planus, and the Veteran was prescribed the use of sneakers and pain relief medication. A contemporaneous clinical record describes a similar problem and also notes the presence of shin splints. Based on the above treatment record, the Board in November 2008 ordered a VA examination to determine if the Veteran's pre-existing bilateral foot condition had undergone aggravation in service. Following an October 2010 VA Compensation and Pension examination, the diagnosis was given of pes planus deformity of both feet with a history of bone surgery in the past. The VA examiner further indicated the opinion that the Veteran's current feet disabilities were due to natural progression of the disease, and there was no evidence of any aggravation of a pre-existing condition. Unfortunately, there is no principled basis from this opinion upon which to fairly assess its validity, given its absence of a supporting rationale, including discussion of the obvious documented indication of bilateral foot problems within a few months of service entrance. Therefore, a supplemental opinion should be procured from the VA examiner that offers a more comprehensive discussion of the available evidence. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Before this supplemental opinion is obtained, further action remains necessary to confirm that there is a complete service medical history of record. While there is verification of periods of active duty service from April 1984 to July 1984, and December 2002 to August 2003, the Veteran's most recent DD-214 actually references 4 full years of prior active service. The Veteran himself has referred to additional active duty service than that which has been formally established, at one point identifying active service between 1988 and 1992. On remand, the RO/AMC should attempt to verify the Veteran's complete periods of active duty service through first contacting him directly, then contacting the National Personnel Records Center (NPRC) to obtain relevant supporting documentation and corresponding medical records. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request information and precise dates pertaining to any period of active duty service besides those already documented from April 1984 to July 1984 and December 2002 to August 2003. Based upon the Veteran's response, then contact the National Personnel Records Center for official documentation of service and all supporting medical records. Then associate all records obtained with the claims file. 2. The RO/AMC should return the claims folder to the VA examiner who conducted the examination of October 2010 and request a supplemental opinion. The examiner should again opine as to whether the Veteran's bilateral foot disorder which pre-existed his military service either underwent permanent aggravation therein, or clearly and unmistakably did not undergo aggravation therein. In providing the requested determination, it is essential that the examiner specifically comment upon the significance of the Veteran's documented treatment instances for bilateral foot problems in service (to the extent that under applicable VA law, these documented treatment instances already support a presumption of aggravation). The VA examiner is further requested to provide a thorough and detailed opinion rationale for all conclusions reached. Provided that the October 2010 examiner is not available, or is no longer employed by VA, schedule the Veteran for an examination by a VA podiatrist who has not seen him previously, and that addresses the inquiry set forth. 3. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO/AMC should readjudicate the claim on appeal based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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. 2012). _________________________________________________ K. PARAKKAL 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) (2012).