Citation Nr: 1303310 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-14 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for spur formation on the lateral aspect base of the right foot fifth metatarsal. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1983 to July 1986, and from May 1990 to April 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which, in pertinent part, denied the benefit sought. The appeal was before the Board in April 2011, at which time it was remanded to obtain an addendum from a previous examiner to clarify the medical evidence of record. 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 This matter must be remanded because the Appeals Management Center (AMC) failed to comply with the Board's April 2011 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Rather than obtaining the requested opinion, it is apparent that the AMC scheduled an unnecessary examination, and then denied the claim when the Veteran did not report for the examination. In April 2011, this appeal was remanded for an addendum to a June 2006 examination report, because of an ambiguity in the evidence. The Veteran's service treatment records contain a November 1991 right foot X-ray that was interpreted to show a spur formation along the lateral aspect of the base of the fifth metatarsal. A June 2006 X-ray taken as part of a VA fee-basis examination was read as unremarkable as concerning the fifth metatarsal. Similarly, the June 2006 examination report does not note any positive findings on clinical examination of the feet. Despite the X-ray examination report and physical findings, the examination report notes that, "[t]he patient's x-ray of the right foot does show spur formation." Notwithstanding that comment, no diagnosis was entered for the right foot. The examiner rendered a diagnosis for the right ankle but not the right foot. In the April 2011 remand, the Board provided the following instructions to the AMC/RO: [R]efer the claims file and examination report back to the examiner who conducted the June 2006 study for clarification. The examiner is to specifically note whether physical examination of the right foot revealed a spur formation; and, whether the 2006 examination report, "Pertinent History," Paragraph 4, accurately reflects the examiner's assessment of the right foot x-ray. Further, the examiner is to diagnose any and all right foot abnormalities to include any radiological abnormalities. Should the examiner advise that another examination is needed to answer any of the above questions, the AMC/RO will arrange the examination. A complete rationale must accompany any opinion offered. (emphasis added). See Board Remand, April 29, 2011. The remand was clear that no further examination was required unless specifically requested by the June 2006 examiner. Email correspondence dated in May 2011, as well as the Exam Request Report completed in May 2011, included instructions consistent with the Board's remand, that no new examination was necessary. Without any indication in the claims file to suggest that the previous examiner requested a new examination, or that the June 2006 examiner was not available, QTC, scheduled the Veteran for a new examination on July 5, 2011. Subsequently, the examination was rescheduled for July 14, 2011. The record reflects that the Veteran failed to appear for his scheduled examination. The AMC readjudicated and denied the claim, citing 38 C.F.R. § 3.655 (2012) to support its finding that no other efforts needed to be taken with respect to the Veteran's claim. Under 38 C.F.R. § 3.655, a claim is to be rated on the evidence of record "[w]hen entitlement . . . cannot be established . . . without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination . . . ." Section 3.655 is inapplicable to the present situation; VA has in its possession both the 1991 and 2006 medical records creating the ambiguity for which a clarification was requested. There is nothing in the record to suggest that further examination is necessary to determine whether entitlement to service connection should be established. Rather, a new examination should only have been scheduled if requested by the June 2006 examiner, or if there was evidence that the June 2006 examiner was not available. Based on the present record, the Veteran should not have been scheduled for a new examination, and thus the AMC failed to follow the Board's April 2011 remand order. Accordingly, the case is REMANDED for the following action: 1. Consistent with the instructions in the prior remand, make a copy of the November 1991 Radiology Consult in the service treatment records and provide it to the examiner who conducted the June 2006 fee-basis examination. 2. Provide the claims file, the examination report, and access to Virtual VA to the examiner who conducted the June 2006 study for clarification. The June 2006 examiner is to specifically note whether physical examination of the right foot revealed a spur formation; and, whether the 2006 examination report, "Pertinent History," Paragraph 4, accurately reflects the examiner's assessment of the right foot x-ray. Further, the June 2006 examiner is to diagnose any and all right foot abnormalities to include any radiological abnormalities. Should the June 2006 examiner advise that another examination is needed to answer any of the above questions, the AMC/RO will arrange the examination. A complete rationale must accompany any opinion offered. 3. If in the opinion of the June 2006 examiner a new examination is necessary, or if the June 2006 examiner is not available advise the Veteran that, in accordance with 38 C.F.R. §§ 3.158 and 3.655 (2012), it is his responsibility to report for the VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 4. Thereafter, the AMC/RO must review the claims file and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The AMC/RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. Then review the Veteran's claim de novo in light of the additional evidence obtained. If the claim is not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant 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. 2012). _________________________________________________ DEREK R. BROWN 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).