Citation Nr: 1301943 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 12-03 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from January 1954 until November 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board hearing held at the RO in November 2012. A transcript of the hearing has been associated with the claims file. At the time of his Board hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such evidence. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he developed a bilateral foot disorder in service due to the physical rigors of his service. Alternatively, he alleges that his bilateral foot disorder pre-existed his service and was aggravated by it. He and his wife have testified to a continuity of bilateral foot symptomatology follow his military service. Therefore, he claims that service connection for a bilateral foot disorder is warranted. With the exception of his October 1955 transfer examination, which is of record, the Veteran's service treatment records are believed to have been destroyed in a fire in July 1973 at the National Personnel Records Center facility. Given the absence of these records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the Board has a heightened duty in a case where the service medical records are presumed destroyed). The VA and private medical records document that the Veteran has received treatment for his feet over the years. In January 1994, Dr. Gray diagnosed him with an equinovarus acquired deformity of the left foot. In November 1994, Dr. Gray found him to have an adult acquired cavovarus foot on the right side. In a December 2003 private medical record, Dr. Gray found him to have an unspecified deformity of the ankle and foot, acquired. In May 2012, Dr. Cimino reported that the Veteran had bilateral, congenital foot abnormalities. Dr. Cimino found that the Veteran's rigorous endeavors in service contributed to his ongoing foot and ankle problems. The Board finds that a VA examination is necessary to determine the etiology of any bilateral foot disorder that the Veteran may have. In this regard, it is unclear whether the Veteran has a congenital or acquired bilateral foot disorder. In cases where the claimant seeks service connection for a congenital condition, the Board must classify the condition as to whether it is a disease or defect and discuss the presumption of soundness. Quirin v. Shinseki, 22 Vet. App. 390 (2009). In VAOPGCPREC 82-90, the General Counsel held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin. Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. In contrast, congenital or developmental defects are not service connectable in their own right; however, service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). The Board further finds that a remand is necessary in order to obtain outstanding private treatment records. In this regard, the Veteran reported treatment from Dr. Dugas, Dr. Cimino, Dr. Bragulit, and the Bridgeport Hospital at his November 2012 Board hearing. He further indicated that he had undergone surgery on his bilateral feet in February 2012 and December 2012 performed by Dr. Cimino. These records are not contained in the claims file. Therefore, on remand, the Veteran should be requested to identify all private medical providers who treated him for his bilateral foot disorder from the time of his service discharge in 1955 to the present. Thereafter, all identified records that have not already been obtained should be requested. The Board further notes that the last VA medical records associated with the claims file were from May 2011 and were from the Hudson-Valley VA Medical Center (VAMC). The Veteran also submitted a December 2011 VA medical record concerning his feet, indicating that he received continuing VA treatment, including at the Bronx VAMC. Therefore, while on remand, VA treatment records from the Hudson-Valley VAMC from May 2011 to the present and any records from the Bronx VAMC should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AOJ should obtain VA treatment records from the Hudson-Valley VAMC from May 2011 to the present and any records from the Bronx VAMC. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. The Veteran should be provided with an opportunity to identify any private medical providers who have treated him for his bilateral foot disorder since his discharge from the military in 1955, to include Dr. Dugas, Dr. Cimino, Dr. Bragulit, and the Bridgeport Hospital. He should be requested to fill out authorization forms so as to allow VA to obtain the records. After receiving any necessary authorization forms, the AOJ should request all identified private treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, the AOJ should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above development has been accomplished, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his bilateral foot disorder. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify all current diagnoses referable to the Veteran's right and left feet. The examiner should indicate whether each disorder is congenital or acquired in nature. Thereafter, the examiner should offer an opinion on the following: If the Veteran is diagnosed with a congenital bilateral foot disorder: (a) Does it constitute a defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? (b) If the Veteran's bilateral foot disorder is considered a defect, was there additional disability due to disease or injury superimposed upon such defect during service? (c) If the examiner finds that the Veteran's bilateral foot disorder is a disease, was it aggravated by his military service beyond the natural progression? Aggravation indicates a permanent worsening of the underlying condition as compared to an increase in symptoms. If the Veteran is diagnosed with an acquired bilateral foot disorder: (a) Is there clear and unmistakable evidence that the bilateral foot disorder pre-existed service? (i) If there is clear and unmistakable evidence that the bilateral foot disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service. If there was an increase in the severity of the Veteran's bilateral foot disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that any current bilateral foot disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service. In offering any opinion requested above, the examiner should consider the Veteran's competent and credible report of the rigors of his service, to include performing long marches with heavy packs (including sometimes in mud and on sand). He or she should also consider Dr. Cimino's May 2012 opinion as well as the Veteran's and his wife's lay statements regarding the incurrence of the Veteran's bilateral foot disorder and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).