Citation Nr: 1305372 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 12-10 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for pes planus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from June 1943 to October 1943. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2011 of a Department of Veterans Affairs (VA) Regional Office. In a decision in September 2012, the Board reopened the previously denied claim of service connection for pes planus, and remanded the reopened claim for further development. As a result of the remand, the claim is again REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND On the merits of the claim of service connection, the service treatment records are presumed destroyed by a fire at the National Personnel Records Center in 1973. The record does include a certificate issued in lieu of a separation document that shows that the Veteran was discharge from service by reason of Circular 161, WD, 1943, apparently pertaining to the standards for inductees or fitness for duty. In 1943, the War Department eliminated the category "limited service" and ordered that personnel who did not meet the minimum standards for induction would be discharged. As it is not clear whether the elimination of "limited service" applies to the Veteran, further developed under the duty to assist is needed. Also, after the supplemental statement of the case was issued in January 2013, the Veteran identified other VA records, pertaining to the claim. As VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, unless the records do not exist or further efforts to obtain the records, further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following actions: 1. Ask the proper federal custodian of historical records for the Department of the Army for a copy of Circular 161 of the War Department, issued in March 1943 and subsequent changes in April or May 1943, and in July 1943 and up to October 1943. If the Circular does not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.3159(e). 2. Request VA records from the Knoxville CBOC and the VAMCs at Murfreesboro and Memphis since 2006. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.3159(e). 3. Arrange to have the Veteran's file reviewed by a VA podiatrist for an opinion on the following question: Is there clear and unmistakable, that is, undebatable, evidence that the preexisting flat feet were not aggravated by service? In formulating an opinion, the VA podiatrist is to consider that the service treatment records, including the report of entrance examination, are presumed destroyed by a fire at the National Personnel Records Center in 1973, and the lack of contemporaneous medical evidence does not constitute clear an unmistakable evidence against the claim. Aggravation is not conceded where the condition underwent no increase in severity during service on the basis of all the evidence of record, pertaining to the manifestations of the disability prior to, during, and subsequent to service. A lack of aggravation means either that there was no increase in disability during service or that any increase in disability in service was due to the natural progress of the preexisting condition. 3. After the above development, adjudicate the claim, including the theory of service connection by aggravation. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case 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). The 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). _________________________________________________ George E. Guido Jr. 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).