Citation Nr: 1314489 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 11-01 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a bilateral foot condition including pes valgus planus deformity and hallux abducto. 2. Entitlement to service connection for bilateral shin splints. ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1988 to March 1989. He had a period of active duty for training from March 10, 1990 to March 23, 1990, and was honorably discharged from the Marine Corps Reserves in April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran appealed this decision, and the matter is now before the Board. In February 2008 the Veteran submitted a claim to reopen the matter of service connection for a bilateral foot disability. The RO issued a rating decision denying the Veteran's application to reopen in September 2008. Also in September 2008 the Veteran submitted a letter asking that VA "reconsider" the decision not to reopen his claim. At that time he submitted new treatment records not previously associated with the claims file. In October 2008 the RO readjudicated the application, again denying the application to reopen his claim of entitlement to service connection for a bilateral foot disability. In May 2009 he again submitted an application to reopen his claim of entitlement to service connection for a bilateral foot disorder in addition to an application to reopen a previously denied claim of entitlement to service connection for bilateral shin splints. The RO denied both applications in a rating decision of December 2009, which the Veteran timely appealed. In its December 2009 rating decision, the RO addressed the Veteran's previously denied claim of entitlement to service connection for bilateral shin splints. The Veteran appealed from that decision, however the requisite statement of the case was never issued in response. Manlincon v. West, 12 Vet. App. 238 (1999). If VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156(c) (2012). In May 2009 the Veteran submitted service personnel records dated March 1990. Specifically, these records included March 1990 orders from the United States Marine Corps ordering the Veteran to report for Active Duty for Training (ACDUTRA) that month for a period of 14 days. These records were not associated with the claims folder when VA first denied his claim of entitlement to service connection for bilateral foot condition and shin splints in October 1991 and are pertinent to the claim on appeal to the extent that they verify that the Veteran was on ACDUTRA during a period which he claims is related to the onset or aggravation of his claimed bilateral foot condition. Accordingly, the issues before the Board will be adjudicated on the merits and the Board has therefore listed the issues on the title page accordingly. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 The Veteran's contentions are two-fold. He argues that his foot disability first manifested during, and is the result of, active duty. In the alternative, he also argues that a pre-existing foot disability and shin splints were aggravated, permanently by a March 1990 period of ACDUTRA. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In order for service connection to be awarded based upon ACDUTRA, the claimant must establish that he or she was disabled from an injury or disease incurred or aggravated in the line of duty in ACDUTRA. See 38 U.S.C.A. §§ 101(2), (24), 1110 (West 2002); 38 C.F.R. § 3.6(c) (2012). Service connection may also be awarded based on a period of inactive duty for training (INACDUTRA). In order to do so, the claimant must establish that he or she was disabled from an injury incurred or aggravated in the line of duty in INACDUTRA. See 38 U.S.C.A. §§ 101(2), (24) (West 2002); 38 C.F.R. § 3.6 (2012). Service personnel records show that the Veteran reported for ACDUTRA on March 10, 1990 and departed ACDUTRA on March 13, 1990. Service treatment records reflect that the Veteran denied foot problems, arthritis, and bone, joint or other deformity on enlistment in October 1987. His enlistment examination reflected normal feet and lower extremities. On separation examination in March 1989, the Veteran's feet and lower extremities were again reported as normal. However, in October 1988, the Veteran had reported valgus and varus stress. On VA examination in December 1990, the Veteran reported that he was currently active in the reserves but unable to participate due to foot pain. He indicated that bilateral foot pain had begun during basic training in mid-1988 and that he was treated for shin splints using orthotics. On examination the Veteran had no gross deformity of the feet and there were "not any clinical abnormalities of the hindfoot or forefoot." The diagnosis was of bilateral foot pain, without objective clinical findings on examination. May and August 1990 letters from a podiatrist stated that the Veteran had painful, burning, tingling and shooting sensations on the inferior aspect of the metatarsophalangeal joint of the left foot and that pain in both feet had been present for approximately three years. The Veteran had also been reporting shin splints associated with pes valgo planus and early hallux abducto valgus. X-ray imaging showed signs of hallux abducto valgus. A September 1990 service treatment records reveals that the Veteran reported concern about a foot condition. In February 1991, the Department of the Navy issued a letter stating that based on a review of the available medical information, the Veteran was not physically qualified for retention in the Marine Corps Reserve due to pes planus - hallux valgus deformity. The record now includes 2008 treatment notes from a Dr. David Adler which document ongoing foot and ankle disorders including hallux valgus, plantar fasciitis, and ankle equinus. Another May 2008 treatment note included an assessment of resolving degenerative joint disease exacerbated by the patient's activities, such as sports and being in the military. In light of the Veteran's statements, and the private treatment records noted above in addition to the March 2008 statement from a podiatric surgeon indicating that hallux valgus, ankle equinus and pes valgus were "suffered while [the Veteran was] serving in the military," the Board finds that VA's duty to provide a VA examination has been triggered. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has identified private medical treatment and in order to ensure that VA has all relevant records, the Veteran should be contacted and asked him to identify all sources of VA and non-VA medical treatment for the claimed foot disorder and shin splints. With regard to his claim of entitlement to service connection for shin splints, it appears that the RO has not yet issued a Statement of the Case (SOC) addressing the matter. Following the RO's December 2009 rating decision denying the Veteran's application to reopen his claim of service connection for shin splints, he submitted a timely notice of disagreement in January 2010 which the Board interprets to have regarded both his bilateral foot disorder, and shin splints. While the Veteran entitled his letter "Notice of Disagreement to the denial of service connection for my bilateral foot condition . . . ," he also included arguments relating to the onset of shin splints, and had submitted evidence relating the bilateral shin splints. Furthermore, in his VA Form 9 the Veteran again referred to shin pain. It is in light of the above that the Board has broadly interpreted the Veteran's intent to include having disagreed with all aspects of the December 2009 rating decision. When a Veteran has filed a notice of disagreement and there is no statement of the case on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Accordingly, the issue of entitlement to service connection for bilateral shin splints is remanded for issuance of an SOC. In so doing, the RO should consider the applicability of 38 C.F.R. § 3.156(c) and the manner in which the Board has framed the issues above. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and ask him to identify all sources of VA and non-VA medical treatment for the claimed foot disorder and shin splints. The letter should request sufficient information to identify health care providers, and if necessary, signed authorization to enable VA to obtain any additional evidence. If the Veteran adequately identifies relevant health care providers and provides the completed authorizations, request legible copies of all pertinent clinical records that have not been previously obtained, and incorporate them into the Veteran's claims file. 2. Following the above development, the RO should schedule the Veteran for a VA examination to determine the nature and likely etiology of his bilateral foot disorder and bilateral shin splints. The Veteran's VA claims folder must be made available to the examiner for review in connection with the examination. The examiner should elicit from the Veteran and record a complete clinical history referable to the claimed foot and shin disorders. The examiner should also report all current diagnoses pertaining to the feet. After reviewing the entire record and examining the Veteran, the VA examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or more) that a disability manifested by bilateral foot pain had its clinical onset during the Veteran's active service, or is related to an injury or event in active service or during the Veteran's March 1990 period of ACDUTRA. The examiner should also set forth an opinion as to whether the current foot and shin split disorders pre-existed the Veteran's March 1990 period of ACDUTRA and were aggravated by that service beyond natural progression of the disease. If either the current foot or shin splint disorder is found to have been aggravated beyond the natural progression of the disease during the period of ACDUTRA in March 1990, was such worsening caused by the period of ACDUTRA? The examiner should provide a rationale for all conclusions. If the examiner determines that he or she is unable to provide the requested medical opinion without resorting to speculation, the examiner should indicate this in the report. 3. After completing all indicated development readjudicate the claim for service connection for a bilateral foot disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity response. 4. Issue the Veteran an appropriate statement of the case addressing the issue of entitlement to service connection for bilateral shin splints. The RO should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of the issue following the issuance of the Statement of the Case unless he perfects his appeal. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ K. J. ALIBRANDO 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).