Citation Nr: 1300822 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-39 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1998 to May 2000. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim of entitlement to service connection for a bilateral foot disability. In October 2011, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. 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 VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran contends that he has a current bilateral foot disability related to service. During his hearing, he testified that the onset of the disability was during his second week of basic training and that he has continued to have problems ever since that time. See Hearing Transcript at 3. He indicated that he was treated for foot problems once a month during service. See id. at page 5. The Veteran's representative argued that although the Veteran was discharged from service due to his weight, he was unable to maintain his weight because of his foot problems. See id. at page 6. It was also contended that the Veteran's foot disability was misdiagnosed in service. See id. at page 5. Additionally, the Veteran stated that he did not receive treatment post-service because he did not have insurance or money, and his representative indicated that the Veteran attempted to get medical treatment from the VA within a year after service discharge. See id. at page 5, 7. A review of the service treatment records shows that the Veteran was seen on multiple occasions for complaints related to his feet. In November 1998, the Veteran complained of ankle and heel pain bilaterally; a diagnosis of Achilles tendinitis was noted. He was seen a week later and an assessment of unresolved Achilles tendinitis was noted. In December 1998, the Veteran complained of heel pain and he was referred to podiatry. The following day, an assessment of pes cavus was noted. A radiology report dated the same day noted an impression of normal bilateral ankles. Six days later, the Veteran complained of heel pain and an assessment of resoling bilateral heels was noted. Thereafter, in August 1999, the Veteran indicated that when walking on hard surfaces, it felt like he was walking on pins and needles, and he complained of pain in both heels and ankles. An assessment of polyarthralgia was given. The Veteran was seen again 11 days later in the Family Practice Clinic, the report of which noted that he has had multiple aches and pains in his feet since starting service. An assessment of bone stress was noted. The Veteran was seen again for complaints of bilateral foot pain in September 1999; a provisional diagnosis of bilateral foot stress reaction was noted before a diagnosis of pes cavus was given. He was put on a permanent Physical Profile due to the pes cavus in December 1999. Then in January 2000, the Veteran was seen for an overweight evaluation. Six days later, it was noted that he was unable to walk two miles and unable to walk the motor pool; arch supports and boots with cushions were of no help. Pes planus was noted. He was again put on a permanent Physical Profile due to the pes cavus in January 2000. On the examination report at service discharge in March 2000, pes cavus was noted. On the accompanying Report of Medical History, the Veteran indicated having had foot problems. The Veteran's records reflects that he was discharged due to failure to control his weight. In March 2010, the Veteran was afforded a VA examination. Upon evaluation of the Veteran, the examiner noted an impression of mild bilateral hallux varus deformity of the fifth metacarpophalangeal joint of each foot, but indicated that there was no evidence of pes planovalgus deformity or signs of a recent or sub acute injury and there was a negative assessment of the joint surfaces. Based on the current record, the Board finds that there is insufficient evidence to make a determination in this case. Although the Veteran was afforded a VA examination, the examiner did not address the etiology of any current foot disability nor account for the various assessments of foot problems during service. In fact, there is no indication that the examiner reviewed the claims folder as the report only reflects the history as recounted by the Veteran and makes no references to the Veteran's extensive in-service history related to the feet. As the record currently stands, the Board finds that there is insufficient evidence to determine the nature and etiology of the Veteran's bilateral foot disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). Therefore, on remand, the Veteran must be afforded another examination for this claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the nature and etiology of any current foot disability. The examiner must review the claims file, to include a copy of this remand, and must indicate that review of the claims folder was completed. The examiner must determine a) the diagnosis of any current foot disability; and b) whether it is as likely as not (a 50 percent or greater probability) that any currently diagnosed disability is etiologically related to service, to include the notations for treatment during service. The examiner should determine if any diagnosis given in service appears to be a misdiagnosis. Additionally, the examiner should address whether the Veteran's discharge from service due to failure to control his weight was related to any foot disability. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of symptoms reported by the Veteran, as well as the competent and credible lay testimony regarding the continuity of symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. After completing the requested actions, and any additional notification and/or development warranted, the RO/AMC must readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).