Citation Nr: 1304641 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-15 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for gout of the right and left great toes. 2. Entitlement to service connection for a right foot disorder. WITNESSES AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1974 to February 1976. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In that decision, the RO denied the claims for service connection. The Veteran provided testimony through a translator at a March 2012 videoconference hearing from the American Samoa before the undersigned Veterans Law Judge, who conducted the hearing sitting in Washington, DC. A transcript of the hearing is associated with the claims file. During the March 2012 hearing, it was agreed that the record would be held open for 30 days in order to allow the Veteran the opportunity to submit additional evidence of private medical treatment. The 30-day time period has expired. Thus, the Board may proceed with adjudication of the case. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 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 claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In this case, the Veteran's service treatment records are not associated with the claims file. The RO did request such records in August 2008, and a September 2008 response indicated that they were being mailed. A statement of the case (SOC) also indicates that the Veteran's service treatment records were of record; however, there are currently no such records associated with the claims file. Therefore, the Board finds that additional efforts should be undertaken to obtain and associate the Veteran's service treatment records with the claims file. Moreover, in his August 2009 notice of disagreement, the Veteran indicated that he was treated at a military army hospital at Fort Lewis, Washington, in 1975. Such records are not associated wit the claims file or virtual file. VA has a duty to seek such records. 38 C.F.R. § 3.159(c). Therefore, an attempt should also be made to secure those records In addition, the Board notes that the Veteran was afforded a VA examination in August 2008 in connection with his claims. The examiner diagnosed him with acute gouty arthritis, but did not render any etiological opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of his claimed disorders. Lastly, the Board observes that additional evidence has been received, namely private treatment records, which were not previously considered by the RO. A supplemental statement of the case (SSOC) was not issued, and the Veteran did not submit a waiver of the RO's initial consideration of the evidence. See 38 C.F.R. § 20.1304(c). As such, the additional evidence should be referred to the RO for review and preparation of a SSOC, if a grant of the benefit sought is not made. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the National Personnel Records Center (NPRC), or other appropriate location, to make a specific request for the Veteran's complete service treatment records and through any other appropriate records repository to which pertinent clinical records may have been sent. These efforts should include requesting clinical records documenting the Veteran's treatment for his feet in 1975 at a military army hospital located in Fort Lewis, Washington. As set forth in 38 U.S.C.A. §5103A(b)(3) and 38 C.F.R. §3.159(c)(2) , the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of the RO's attempts to locate his medical records from his active duty service as well as any further action to be taken. 2. The Veteran should be afforded a VA examination to determine the nature and etiology of any gout and right foot disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The Veteran has claimed that he developed problems with his feet and ankles in service due to his boots and road marching. He has also stated that he was treated in service in 1975. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current right foot disorders and indicate whether he currently has gout affecting his right and left great toes. For each current diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JESSICA J. WILLS 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).