Citation Nr: 1318236 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-24 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left foot disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran had active service from September 1954 to September 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Cleveland, Ohio, Regional Office (the RO) of the Department of Veterans Affairs (VA). Original jurisdiction currently resides at the RO in St. Petersburg, Florida. In April 2013, the Veteran presented sworn testimony during a personal hearing at the St. Petersburg RO, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims folder. Additionally, evidence has been associated with the Veteran's claims folder which was accompanied by a waiver of local consideration. See 38 C.F.R.§§ 19.9, 20.1304(c) (2012). With respect to the Veteran's claim of entitlement to service connection for a left foot disability, the Board notes that this claim was previously denied by the RO in November 1995 and that the RO declined to reopen the claim in a July 1997 rating decision. The Veteran did not appeal and both decisions became final. The Veteran thereafter filed a claim to reopen his previously denied service connection claim in December 2008. Moreover, in December 2009, he submitted a service report of medical history dated September 1956 in conjunction with his separation examination which documents his complaints of a history of foot trouble and pes planus. This report of medical history was not previously associated with his claims folder. Under 38 C.F.R. § 3.156(c)(1) (2012), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim ... Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease ..." As indicated above, the Veteran's September 1956 report of medical history was not associated with his claims folder when his service connection claim for a left foot disability was last considered by the RO. Further, the Board finds that this report of medical history is clearly relevant and of probative value to his claim, as it demonstrates evidence of an in-service left foot disability. The Board will therefore reconsider the Veteran's claim and is recharacterizing the issue on appeal to entitlement to service connection for a left foot disability pursuant to 38 C.F.R. § 3.156(c). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. It is noted that the Veteran raised the issue of service connection for a right foot disability and an ankle disorder, both of which were previously denied by the RO, in the June 2010 substantive appeal and during the April 2013 hearing. As these matters have not been adjudicated, they are referred to the RO for the appropriate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 For reasons expressed immediately below, the Board finds that the issue of entitlement to service connection for a left foot disorder must be remanded for additional evidentiary development. Service treatment records The Board notes that some of the Veteran's service treatment records are not associated with the claims folder. The RO submitted a request to the National Personnel Records Center (NPRC) in March 1996, asking for all available military medical records. In response to the request by the RO, the NPRC reported in July 1996 that they were unable to locate the records identified in the RO's request as the Veteran's records were destroyed in a fire. The Board notes that no subsequent attempts were made by the RO to obtain the Veteran's service treatment records. However, as discussed above, the Veteran has recently submitted relevant service treatment records. As such, the Board finds that another attempt should be made by the RO to locate the Veteran's service treatment records following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Moreover, although the Veteran was notified in a July 1996 letter that his service treatment records were unavailable and was informed of alternative evidence that he may submit in lieu of the service treatment records to substantiate his claim in accordance with the M21-1MR, Part III, Subpart iii, Chapter 2, Section E.27.b., the Board finds that due to the amount of time that has passed since then, he should again be notified of such. VA and private treatment records During the above-referenced Travel Board hearing in April 2013, the Veteran discussed his left foot disability and claimed that his symptoms had persisted since service. He also indicated that he had undergone treatment at Fort Hamilton in Brooklyn, New York in the 1970s. See the April 2013 Board hearing transcript, pgs. 17-18. The Board notes that no records from Fort Hamilton dated in the 1970s are associated with the Veteran's claims folder. The Veteran also reported in a VA Form 21-4142 dated in March 2009 that he received treatment at the Chapel Street Veterans Healthcare Center in Brooklyn. Those records should also be requested. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate these records with the Veteran's claims folder. Further, the Board notes that a statement from Dr. Spinner dated in June 2010 indicates that the Veteran has been treated in his office since August 2007. While records dating to January 2009 have been submitted, it appears that there may be additional records available. On remand, the Veteran should be asked to authorize the release of any additional records from Dr. Spinner. VA examination A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." With respect to a current disability, the current medical evidence of record documents diagnoses of posttraumatic arthropathy and pes planus of the left foot. See, e.g., a VA treatment record dated September 2012. The Veteran contends that his current left foot disability is due to his military service, in particular from an in-service injury when he fell off a pole. See the April 2013 Board hearing transcript, pgs. 5-6. He further contends that he did not have a left foot disability when he entered service in September 1954. The Board notes that the Veteran is competent to attest to experiencing an injury to his left foot during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of injuring his left foot. Moreover, his September 1956 separation examination documents a history of left foot trouble as well as a diagnosis of pes planus. The Board therefore has no reason to doubt that the Veteran experienced such injury during service, and finds him credible with regard to his reported in-service injury. As indicated above, the Veteran's service entrance examination is not of record. Thus, the Veteran is presumed to have been in sound condition upon entry. However, there is no opinion of record that addresses whether there is clear and unmistakable evidence that the Veteran's left foot disability preexisted military service and, if it did, whether there is clear and unmistakable evidence that the left foot disability was not aggravated by service. See 38 U.S.C.A. §§ 1111, 1153 (West 2002), 1132; 38 C.F.R. §§ 3.304(b), 3.306 (2012); Wagner, supra; VAOPGCPREC 3-2003. In light of the foregoing, the Board finds that an opinion for such must be obtained. See 38 U.S.C.A. § 5103A(d) (West 2002); Barr v. Nicholson, 21 Vet. App. 303 (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Request the Veteran's complete service treatment records. All attempts to secure this evidence must be documented in the claims folder. 2. Obtain the following VA treatment records pertaining to the Veteran: (a) those dating from May 2010; (b) treatment records from Fort Hamilton in Brooklyn, New York dating from 1970 through 2000; and (c) all treatment records from the Chapel Street Veterans Healthcare Center. All attempts to secure this evidence must be documented in the claims folder. 3. After obtaining proper authorization, obtain private treatment records from Dr. Spinner dating from January 2009 pertaining to treatment of the Veteran's left foot disorder. All attempts to secure this evidence must be documented in the claims folder. 4. All attempts to fulfill the development set forth in steps 1, 2, and 3 should be documented in the claims file. If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same, or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. Also, inform him of alternate sources of evidence that can substitute for missing service treatment records. Dixon v. Derwinski, 3 Vet. App. 261, 264 (1992). 5. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his left foot disability. The Veteran's claims folder must be made available to the examiner prior to the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: (a) state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a left foot disorder pre-existed active service; (b) If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that a pre-existing left foot disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. (c) If the VA examiner determines that the Veteran's left foot disability did not pre-exist his military service, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's current left foot disability began in or is etiologically related to his period of his military service, to include his credible report of injury to his left foot from falling off a pole and as a result of his duties in the marching band. The examiner should indicate in his/her report that the claims folder was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 6. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the claim for service connection for a left foot disability is not granted, the Veteran and his representative should be furnished a supplemental statement of the case addressing this issue and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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.S. TOTH 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).