Citation Nr: 1305627 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 07-20 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for an acquired bilateral foot disorder, to include pes planus and fractures of the right and left feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cheyenne, Wyoming (RO). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Board remanded this matter in October 2011 for additional development, to include the scheduling of a VA examination. The Board specifically asked that a VA examiner indicate whether the Veteran's currently diagnosed bilateral foot disorder was incurred in or aggravated by active duty service, and whether the Veteran's diagnosed bilateral pes planus is congenital in nature. If the Veteran's bilateral pes planus was found congenital in nature, the examiner was asked to provide an opinion as to whether it was aggravated during service by a superimposed disease or injury during service. However, the RO did not pose the entire question to the examiner, resulting in an inadequate opinion. Therefore a remand is necessary for an addendum opinion addressing the Board's entire request. In addition, a May 2009 opinion letter from R.C.S., D.P.M. indicates that he had examined and treated the Veteran's feet. However, treatment records from Dr. R.C.S. have not been obtained. Therefore, on remand, the RO must ask the Veteran to provide the records of Dr. S. or sign the appropriate consent and release form so that VA can obtain the records. Accordingly, the case is remanded for the following action: 1. The RO must furnish the appropriate authorization for the release to VA of all medical records from R.C.S., D.P.M. to the Veteran. The RO must ask the Veteran to obtain the records of Dr. S. or sign the furnished consent and release form so that VA can obtain the records. Any signed authorization must be associated with the evidence of record, and the RO must attempt to procure copies of all records from Dr. S. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After obtaining any updated treatment records, the claims file and all records on Virtual VA must be made available to the VA examiner that provided the November 2011 opinion, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After reviewing the evidence of record, to include the Veteran's statements, the examiner must provide an addendum opinion addressing (a) whether the Veteran currently has a bilateral foot disorder other than pes planus that was incurred in or aggravated by active duty service, and (b) whether the Veteran's bilateral pes planus, which the examiner found congenital in nature, was aggravated during service by a superimposed disease or injury during service. In so doing, the examiner must address the relevance, if any, of the June 1969 service treatment records showing treatment of an injury with ace wraps and an Achilles issue. The examiner must also address the diagnoses, to include arthritis, and nexus opinion in the April 2008 treatment record from M.M., D.P.M. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 3. If the November 2011 examiner is not available to provide the addendum opinion, the claims file and all records on Virtual VA must be made available to the appropriate VA examiner, who must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After reviewing the evidence of record, to include the Veteran's statements, the examiner must provide an addendum opinion addressing (a) whether the Veteran currently has a bilateral foot disorder other than pes planus that was incurred in or aggravated by active duty service, (b) whether the Veteran's bilateral pes planus, which the November 2011 examiner found congenital in nature, was aggravated during service by a superimposed disease or injury during service. In so doing, the examiner must address the relevance, if any, of the June 1969 service treatment records showing treatment of an injury with ace wraps and an Achilles issue. The examiner must also address the diagnoses, to include arthritis, and nexus opinion in the April 2008 treatment record from M.M., D.P.M. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the evidence of record that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the medical opinion to ensure that it is in complete compliance with the directives of this remand. If the medical opinion is deficient in any manner, the RO must implement corrective procedures at once. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claim on appeal must be readjudicated. If the issue on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).