Citation Nr: 1317029 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-10 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to January 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Board, in pertinent part, denied entitlement to service connection for a bilateral foot disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's January 2012 decision with respect to the denial of service connection for a bilateral foot disability, and remanded the matter for compliance with the terms of the Joint Motion. In January 2013, the Board remanded the matter for additional development. 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 Board finds that further evidentiary development is warranted before the Veteran's claim for service connection for a bilateral foot disability may be adjudicated. The Board also notes that this case involves the situation where the Veteran's service treatment records have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (holding that when service treatment records are presumed destroyed, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule is heightened); see also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). In January 2013, the Board remanded the matter of service connection for a bilateral foot disability to afford the Veteran a VA examination to determine the nature and likely etiology of is claimed bilateral foot disability, with consideration to be given to his competent account that his symptoms of bilateral corns and calluses began during service, and have continued since. The Veteran was afforded a VA foot examination in February 2013. The examiner diagnosed the Veteran with plantar calluses and found that the Veteran did not have any other foot disability nor had he been diagnosed to have any other foot disability. She also ultimately concluded that as she was unable to identify a separation exam, "I would have to resort to speculation to opine on the date of origination of [the] Veteran's ongoing plantar calluses." A review of the record indicates the examiner may have been mistaken in noting that the Veteran had no foot disabilities other than calluses. VA treatment records dated in 2005 and 2006, show entries reflecting the presence of bilateral hallux valgus, hammer toes, and minimal degenerative changes on X-rays. As with the calluses, these need to be addressed. Regarding the opinion offered, a more thorough explanation should be provided with respect to the inability to supply anything more than a speculative opinion, (e.g., the examiner could have addressed whether these calluses of the sort that can be chronic for 40 years; whether one can anticipate a particular appearance and level of severity if present for 40 years; or commented on whether she found the Veteran credible or not credible in reporting his history.) Consequently, a remand is therefore warranted to obtain a new VA examination as to the nature and etiology of the Veteran's bilateral foot disability. Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for another appropriate VA examination to determine the nature and likely etiology of his claimed bilateral foot disability. The claims folder (to include relevant electronic VA treatment records) should be provided to and reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current right and left foot disabilities, (noting that 2005 and 2006 VA records also reflect the presence of hallux valgus, hammer toes and minimal degenerative changes on X-rays.) Based on a review of the claims file, examination of the Veteran, and established medical principles, the examiner should provide a medical opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed right and left foot disabilities are etiologically related to the Veteran's active service. The examiner should specifically acknowledge and discuss the Veteran's report that his disability first manifested during his active service, to include from wearing boots. The examiner's report should set forth all examination findings, and include a complete rationale for all opinions and conclusions reached, with specific references to the Veteran's claims file, and the Veteran's lay assertions. If an opinion cannot be provided without resort to mere speculation, the examiner must state this and must explain why the opinion cannot be provided without resort to mere speculation, noting whether there are facts missing that prevent anything other than speculation, or whether the limits of medical knowledge have been reached. If a non-speculative opinion is precluded by the absence of certain facts, the nature of those facts should be indicated. 2. The RO should then readjudicate the Veteran's claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case, and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant 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). _________________________________________________ MICHAEL E. KILCOYNE 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).