Citation Nr: 1308069 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-29 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for right great toe degenerative joint disease (hereinafter "DJD"). 2. Entitlement to service connection for nerve damage to the right foot, to include as secondary to a service-connected disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to December 1984. These matters came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a January 2006 and an October 2006 rating decision issued by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Wichita, Kansas, wherein the RO denied service connection for DJD, "great toe, right (claimed as right foot condition);" and for "nerve damage, bottom of right foot." In October 2009, the Board remanded the case for additional development of the record, to include obtaining outstanding VA and non-VA treatment records, and requesting VA examination and medical opinion. The record shows substantial compliance with the October 2009 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In March 2011, the Board, inter alia, denied the claims for service connection for right great toe DJD and for nerve damage to the right foot, to include as secondary to a service-connected disability. The Veteran appealed the March 2011 decision to the United States Court of Appeals for Veterans Claims (hereinafter "Court"). In an August 2012 memorandum decision, the Court vacated the Board's March 2011 decision, and remanded the matter to the Board for further adjudicative action, to include consideration and analysis of the Veteran's credibility in reporting the continuity of his symptomatology since service, and consideration of requesting outstanding private treatment records in accordance with the duty to assist. The case has been returned to the Board following the Court memorandum decision. The Court's directive as through the August 2012 memorandum decision is the law of the case. Chisem v. Gober, 10 Vet. App. 526 (1997) (questions settled on a former appeal of the same case are no longer open for review). See Browder v. Brown, 5 Vet. App. 268 (1993). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In the November 2011 "Appellant's Brief," the Veteran's attorney requested vacatur and remand of the case on the basis of, among other things, VA failing to comply with its duty to assist. The attorney argued that VA was aware that the Veteran had undergone a cheilotomy and osteotomy of the right first metatarsophalangeal joint on January 9, 2003, and that private treatment records from that time are relevant because they might reveal a connection to an in-service incident that would not be apparent in post-surgery reports. The Board notes that private and VA treatment records and examination reports confirm that the Veteran reported undergoing foot surgery in 2003. The Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA's duty to assist includes the duty to make reasonable efforts to obtain any outstanding private treatment records identified as relating to a veteran's claim. 38 C.F.R. § 3.159(c) (2012); Talley v. Brown, 6 Vet. App. 72, 74 (1993) (citing Masors v. Derwinski, 2 Vet. App. 181, 187-188)). While the Board acknowledges that the Veteran has had adequate opportunity to provide the information needed to obtain these records but has not yet done so, the Board finds the Veteran should be provided another opportunity to submit these records, or to provide VA with the information necessary to obtain these records on his behalf, as they appear to pertain to both claims for service connection, and thus are relevant for the purpose of readjudication of the claims. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be asked to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. Specifically, the Veteran should be asked to provide the names, addresses, approximate dates of treatment, and to sign releases for treatment records involving his January 9, 2003 right foot surgery. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate effort must be made to obtain all available VA treatment records, including those located in the Virtual VA efolder. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After completion of the above and any additional development deemed necessary, the RO/AMC should review the issues on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ S. L. Kennedy 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).