Citation Nr: 1311476 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-18 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right foot fracture claimed as secondary to service-connected diabetes mellitus and diabetic neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from May 1964 to May 1967. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified at October 2012 Board personal hearing in Washington, DC. The hearing transcript has been associated with the claims file. 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 Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). A medical examination or medical opinion may be deemed necessary where the record contains competent medical evidence of a current diagnosed disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service. See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b) which is applicable to this appeal, the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. The Veteran has not been afforded a VA examination to address his claimed right foot fracture. The Veteran contends that he injured his right foot, post-service, while cleaning his pool. He testified that his foot suddenly gave in, that he grabbed his knee and fell backward, but did not further injure his foot during this fall. He later sought medical attention due to swelling in the foot. VA and private treatment reports show that this injury occurred in May 2008, note the Veteran's longstanding history of diabetes mellitus, and tend to support the Veteran's assertion that the injury occurred when his foot gave way, slipped, twisted, or inverted, and that he sustained no further injury to the foot when he fell. X-rays and a CT scan revealed a Lisfranc fracture and dislocation. The Veteran asserts that his foot injury is due to service-connected diabetes mellitus, and has provided medical research articles which indicate that insulin-dependent diabetics have a higher risk for sustaining fractures. Additionally, an October 2008 opinion from Dr. W. indicates that the Veteran's injury was not due to a fall, but was due to his foot giving out from weakness, possibly related to underlying neuropathy. Medical articles and Dr. W.'s opinion indicate a possible link between the Veteran's right foot fracture and service-connected diabetes or diabetic neuropathy. In light of the "low threshold" as announced in Mclendon v. Nicholson, the Board finds that remand for a VA examination is necessary to assist in determining whether a right foot fracture was caused or aggravated by service-connected diabetes mellitus or diabetic neuropathy. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA orthopedic examination to assist in determining if a right foot fracture is etiologically related to service-connected diabetes mellitus or diabetic neuropathy. The relevant documents in the claims folder should be made available for review in connection with this examination. All indicated tests and studies should be performed. The examiner should offer the following opinions: a. Is it at least as likely as not (a 50 percent or greater probability) that the claimed right foot fracture was caused by service-connected diabetes mellitus and/or diabetic neuropathy? b. Is it at least as likely as not that a right foot fracture permanently worsened in severity (was aggravated) by service-connected diabetes mellitus and/or diabetic neuropathy? If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. In rendering an opinion, the examiner should address relevant findings of record, including the Veteran's lay testimony attesting to giving way of the right foot prior to falling, VA and private treatment records identifying a twisting injury, inversion, or giving way of the right foot, x-ray and CT findings identifying a Lanfranc fracture and dislocation, medical articles which relate diabetes mellitus to an increased risk for fractures, and an October 2008 opinion from Dr. W. which indicates that the Veteran's injury was due to his foot giving out from weakness, possibly related to underlying neuropathy. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. After all development has been completed, the RO/AMC should re-adjudicate the claim for service connection. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2012). 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). 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). _________________________________________________ C. L. KRASINSKI Acting 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).