Citation Nr: 1302987 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 09-28 669 ) 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, to include bilateral pes planus, right foot strain with degenerative joint disease, mild hallux deformities of the great toes, and plantar fasciitis. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from March 1989 to September 1990. This matter comes before 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. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). VA's General Counsel and the Veteran, through his attorney, filed a Joint Motion for Remand (JMR) regarding the issue listed above. By Order dated in August 2012, the Court granted the JMR, and the issue was remanded to the Board for action consistent with the JMR. The issues of entitlement to service connection for bilareral hearing loss and a low back disability were remanded by the Board in the March 2012 decision and are not before the Board. Also, the remaining issues adjudicated in the March 2012 Board decision were not appealed to the Court and are not before the Board at this time. In the JMR, the parties argued that the issue on appeal should encompass foot conditions in addition to bilateral pes planus. As such, the Board finds that the issue on appeal is more accurately stated as listed on the title page of this decision. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Additional evidence was added to the Veteran's file in Virtual VA, specifically, VA treatment reports, which were submitted after the case was certified to the Board that were not considered in the most recent October 2010 supplemental statement of the case. The Veteran did not submit a waiver of initial RO consideration of this evidence. However, upon review of this particular evidence, the Board finds no reason to seek a waiver of consideration of this evidence by the RO or to remand the matter for RO consideration of the evidence as the VA treatment records are not pertinent and do not relate to or have a bearing on the appellate issue. 38 U.S.C.A. § 20.1304 (2012). 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 In early September 2012, the Board sent the Veteran and his representative a letter asking whether he wished to submit additional argument and/or evidence in support of his appeal before the Board proceeds with readjudication. The Veteran was advised that he had 90 days in which to respond to the letter and that if he did not, the matter would proceed for review. In response to the September 2012 correspondence, in October 2012, the Veteran sent additional argument to the Board pertaining to the issue on appeal and indicated that he wanted to have his case remanded to the AOJ so that it could first review this argument for his claim. The Board observes that given the Veteran's explicit request, the case must be remanded to the AOJ for initial review and consideration. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003); 38 C.F.R. §§ 19.37(b), 20.1304(a) (2012). Also, in this regard, the Veteran's October 2012 statement indicated that he sought treatment for his bilateral foot disability from a "Military Doctor" at Fort Rucker, Alabama, during service. He also stated that he sought treatment from an orthopedic doctor in 2008 to 2009, where he obtained a custom orthotic for his feet. There is no indication in the claims file that an attempt to obtain these records has been made. Of record, however, there is a letter from Dr. "J.M.," dated in November 2008, indicating treatment of the Veteran's right foot strain with degenerative joint disease, and a letter from Dr. "B.L," dated in May 2009, who opined the Veteran's "heel pain started during active service time and continues to bother him today." VA is, therefore, on notice of records that may be probative to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995). VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b). In a case of records held by a Federal department or agency, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. Thus, on remand, the treatment records specified by the Veteran, including all pertinent records from Fort Rucker, Alabama, and the treatment records from his orthopedic doctor, must be obtained for the Veteran and associated with the claims file. Directly addressing the arguments in the JMR, as the Board has determined that the Veteran's claim encompasses all bilateral foot conditions, another medical examination is necessary pursuant to VA's duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (noting that the types of evidence that "indicate" that a current disability "may be associated" with military service under 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) "include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits"). In this regard, the parties of the JMR did not indicated that the August 2008 VA examination is inadequate and the Board finds that this examination is adequate solely in addressing the etiology of the Veteran's preexisting, bilateral pes planus. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development action required by statutes, regulations, and any applicable legal precedents has been completed. 2. Contact the Veteran to obtain the name and address of the orthopedic doctor who treated his bilateral foot disability in 2008 to 2009. After securing the necessary release, obtain those records that have not been previously secured. Treatment records from Fort Rucker, Alabama, should also be obtained. If the Veteran or any location contacted suggests other sources, those sources should be encompassed by the search. 3. To the extent there is an attempt to obtain any of these records that is unsuccessful, the claims file should contain documentation of the attempts made. The Veteran and his representative should also be informed of the negative results and be given opportunity to secure the records. 4. Schedule the Veteran for a VA orthopedic examination for a diagnosis of all current bilateral foot disabilities, to include right foot strain with degenerative joint disease, mild hallux deformities of the great toes, and plantar fasciitis, and excluding bilateral pes planus. The claims file, including a copy of this Remand should be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report. As to each disability diagnosed, to include but not limited to, right foot strain with degenerative joint disease, mild hallux deformities of the great toes, and plantar fasciitis, and excluding bilateral pes planus, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that any current bilateral foot disability began during service or is otherwise etiologically related to some incident of active duty. In answering this question, the examiner should specifically address and comment on the private opinion already of record from Dr. B.L. in May 2009. In the event that the examiner finds that any current bilateral foot disability is unrelated to service, s/he must explain why the Veteran's assertions of symptomatology since service, specifically pain, are unrelated to any current diagnosis. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 5. After completing any additional notification and/or development action deemed warranted by the record, readjudicate the claim on appeal. The readjudication should reflect consideration of all the evidence of record, including the Veteran's October 2012 submission, and be accomplished with application of all appropriate legal theories. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. 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 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.J. ALIBRANDO 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).