Citation Nr: 1309796 Decision Date: 03/22/13 Archive Date: 04/01/13 DOCKET NO. 06-12 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left foot and toe disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to September 1990. He subsequently completed reserve service until August 1992. This appeal was last before the Board of Veterans' Appeals (Board) in October 2011, on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the claims file has been transferred to the RO in Atlanta, Georgia. In March 2010, the Board issued a decision denying the Veteran's claim for service connection. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which, in a June 2010 memorandum decision, vacated the March 2010 Board decision. The Court remanded the case to the Board for further development and readjudication. In accordance with the Court's remand, the Board remanded the claim in September 2010 for the provision of a new VA examination. Subsequent to additional development, to include the provision of an examination, the Appeals Management Center (AMC) returned the appeal to the Board for readjudication. However, the examination results were not sufficient so the Board remanded the appeal again in October 2011 in order to obtain another medical opinion. The matter has now been returned, again, to the Board for appellate disposition. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. The Board has carefully reviewed the Veteran's virtual file, but found no additional evidence pertinent to the appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board must again remand the claims file for the RO/AMC to comply with VA's duties to notify and assist the Veteran. As noted above, the Board remanded this matter in October 2011 for the provision of an additional medical opinion since the report from a prior (October 2010) examination was lacking in rationale. Another examination was conducted in February 2012. The 2012 examiner opined that the Veteran experienced multiple foot disabilities, but none were related to his in-service injury to his left toe. However, that examiner, as well as the October 2010 examiner, referred to some foot disabilities as "congenital," implying that they have existed since birth, and, therefore, prior to service. Neither examiner provided an opinion as to whether or not any such disabilities clearly and unmistakably (italics added for emphasis) pre-existed service and, if so, whether or not they had been aggravated by any incident of active duty service. As the use of the term congenital raises the possibility of aggravation of a pre-existing disability, but the claims file does not contain a medical opinion on this theory of entitlement, another opinion is warranted. Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Accordingly, the RO should return the claims file to the February 2012 examiner for an addendum opinion. The RO should only arrange for further examination of the Veteran if that examiner is unavailable, or if further examination of the Veteran is deemed necessary. The Board also noted in the October 2011 remand that, although some records from Allied Ankle & Foot Care Center were associated with the record, subsequent evidence reflected that the Veteran had been more recently treated at that facility. The October 2011 remand directed the RO/AMC to assist the Veteran with gathering any additional treatment records from Allied Ankle & Foot Clinic. The claims file reflects that the Veteran did not respond to a February 2012 VA letter asking him to complete an authorization form that would allow VA to obtain more recent treatment records on his behalf. However, as this case is herein remanded for other development, the Board finds that the RO/AMC should make another attempt to assist the Veteran in gathering outstanding, pertinent private medical evidence. See Lind v. Principi, 3 Vet.App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet.App. 363 (1992). VA is also required by the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants by gathering all pertinent records of VA treatment. The last VA treatment record associated with the claims file is dated November 13, 2007. In Bell v. Derwinski, 2 Vet.App. 611 (1992), the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that any such documents are constructively part of the record before the Secretary and the Board even where they are not actually before the adjudicating body. As the claims file indicates that additional VA treatment records may remain outstanding, the RO/AMC must take appropriate steps to gather these records and associate them with the claims file. In light of the above, the Board has re-reviewed the entire record in regard to VA's duties to notify and assist the Veteran. Although a November 2008 Memorandum of Formal Finding of Unavailability of service treatment records is associated with the claims file, the Board observes that memorandum does not reflect that any specific efforts were undertaken to obtain records from the Veteran's reserve service. As he has contended experiencing continuity of symptomatology since injuring his left great toe in 1986 while on active duty, records of examination and treatment from his subsequent reserve service are pertinent. Further, the Board observes the following handwritten note on the top of the Veteran's June 1990 active duty separation examination report: "Med[ical] records kept at MGMC central files." This notation indicates that, for some reason, the Veteran's treatment records may have been maintained separately (at Malcolm Grow Medical Clinic) from his examination records. Since the claims file does not reflect any attempts to gather any separately maintained records, and indicates that records generated during the Veteran's reserve service remain outstanding, the Board finds that the RO/AMC should undertake additional action to ensure that no additional pertinent records are both outstanding and available. While this case is in remand status, the RO/AMC must request, from the Malcolm Grow Medical Clinic at Andrews Air Force Base, any treatment records pertaining to the Veteran that were not already associated with his service record. The RO/AMC also must contact all appropriate record repositories in an attempt to locate any outstanding records from the Veteran's period of reserve service. If no such records can be located, the RO/AMC must provide the Veteran with notice of that fact. Pursuant to 38 C.F.R. § 3.159(e), the notice must identify the records that VA was unable to obtain, explain the efforts VA made to obtain the records, inform the Veteran that VA will decide the claim based on the evidence of record unless he submits the records, and notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding records of VA treatment occurring after November 13, 2007. NOTE that the claims file reflects that the Veteran has been treated at the VAMC in Atlanta. 2. Attempt to locate any outstanding in-service records of treatment from Malcolm Grow Army Medical Center at Andrews Air Force Base. NOTE that the Veteran's separation examination report indicates that his treatment records may have been maintained at Malcolm Grow Army Medical Center's "central files," separately from his examination reports. If no additional records can be located, make a new finding of unavailability and send a letter to the Veteran advising him that the records could not be located. The letter must inform him of the efforts VA made to obtain the records and advise him that VA will decide the claim based on the evidence of record unless he submits the records - notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Also advise him that alternative forms of evidence can be developed to substantiate the claim, including, but not limited to "buddy certificates" and letters. Dixon v. Derwinski, 3 Vet.App. 261, 263-264 (1992); see Washington v. Nicholson, 19 Vet.App. 362 (2005) (remanding claim to the Board to address VA's duty to "exercise greater diligence in assisting the appellant with the development of evidence"). 3. Attempt to locate any outstanding RESERVE service records. NOTE that the Veteran completed reserve service with the 459th Military Airlift Wing, Andrews Air force Base. If no additional records can be located, make a finding of unavailability and send a letter to the Veteran advising him that the records could not be located. The letter must inform him of the efforts VA made to obtain the records and advise him that VA will decide the claim based on the evidence of record unless he submits the records - notify him that he is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). Also advise him that alternative forms of evidence can be developed to substantiate the claim, including, but not limited to "buddy certificates" and letters. Dixon, 3 Vet.App. at 263-264. 4. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Provide him with forms authorizing the release of any identified outstanding private treatment records. These records include, but are not limited to, records of treatment occurring after September 11, 2006 from Allied Ankle & Foot Care Center. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 5. After all records and/or responses have been received from each contacted entity and associated with the claims file, forward the Veteran's entire claims file, to include a copy of this REMAND, to the VA examiner who completed the February 2012 examination. The examiner should review the claims file, with particular attention to any evidence newly associated with the claims file as a result of this remand. The examiner is asked to explain the portion of the February 2012 examination report referring to hallux valgus and flat feet as 'congenital' - specifically, the examiner must provide an opinion, with rationale, as to whether or not these disabilities clearly and unmistakably existed prior to the Veteran's active duty service. The examiner is also asked to explain the October 2010 examination finding that gout was a congenital condition. If determining that any left foot disability pre-existed the Veteran's active duty service, the examiner must also provide an opinion as to whether or not any such disability was or was not clearly and unmistakably worsened beyond a natural progression by any incident of his active duty service, to specifically include, but not limited to, the 1986 injury to the left great toe. If the prior examiner is not available, or another examination is deemed warranted, arrange for the Veteran to undergo VA examination at an appropriate location to obtain the requested opinions. All examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, should be set forth in a printed (typewritten) report. 6. Review the claims file and ensure that the above-directed development has been completed in full. If any additional development is necessary, take appropriate steps. 7. Readjudicate the remanded claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet.App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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).