Citation Nr: 1318825 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-45 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a left foot disability other than left foot fifth metatarsal fracture residuals, to include on a secondary basis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1983 to September 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. When this case was most recently before the Board in May 2012, it was remanded for additional development. It has since been returned to the Board for further appellate review. 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 development is necessary prior to final adjudication of the Veteran's claim. The Veteran contends that her current ankle problems are attributable to injuries sustained during service. The service treatment records show that the Veteran complained of and was treated for numerous left and right foot and ankle problems during service, to include a March 1992 injury in which she twisted her left foot and complained of left ankle pain. X-rays at that time were negative for acute ankle fracture or dislocation. An April 1994 service treatment record shows the Veteran had a callus on the bottom of her left foot. During the April 1994 separation examination, the physician's summary section of the report of medical history included notation of fracture of the fifth metatarsal, sprained ankles, and weak ankles. The Veteran is in receipt of service connection for left foot fifth metatarsal fracture residuals and right ankle injury residuals. A May 2011 Board decision expanded the current left ankle issue, to include entitlement on a secondary basis based on the evidence of record, and remanded for appropriate development. Private treatment records show left foot/ankle disorders during the appeal period of peroneal tendonitis (due to ankle instability with limb length discrepancy), left ankle calcaneal spur, left lower charming peroneal tenosynovitis, and left second metatarsal stress fracture. See treatment records from Drs. V.G. (2008) and K.C. (2010, 2012) (initials used to protect privacy). The VA examination reports discussed below show additional findings of metatarsalgia and current symptoms of left foot hallux valgus, as well as plantar fasciitis based on a report of the Veteran; the VA opinion noted the left ankle disorder to be a soft tissue condition consistent with bursitis and/or strain of the joint. During the May 2011 VA examination, the examiner diagnosed the left foot calcaneal spur and stress fracture of the second metatarsal following examination, as well as left ankle peroneal tendonitis based on review of the private treatment records. An opinion addressing whether any of these disorders was aggravated by the service-connected disabilities was not provided. During the July 2012 VA examination, the same examiner again noted the peroneal tendonitis and calcaneal spur. Following examination, the examiner noted metatarsalgia, attributed to the service-connected left foot disability and current symptoms of left foot hallux valgus, noting a history of such in service. The examiner found that the peroneal tendonitis was due to the congenital leg length discrepancy, and that the heel spur was related to the Veteran's plantar fasciitis, based on a report of the Veteran that she had plantar fasciitis. A March 2013 VA medical opinion indicated review of the claims file, noting some of the findings on the most recent VA examination. The physician found that it was less likely than not that the Veteran's left foot and ankle disorders were proximately due to or aggravated by the service-connected disabilities. This finding was based in part on a determination that the claims file did not contain clinical evidence to support a diagnosis, treatment, or injury of the left ankle during service. In addition, it is unclear if the physician considered the Veteran's lay statements as to symptomatology. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, the examination and corresponding report must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, considering the VA examinations and opinions of record (either separately or taken together), the Board finds that they are inadequate inasmuch as they do not provide complete opinions on both a direct and secondary basis for all identified left foot/ankle disorders other than left foot metatarsal fracture residuals present during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 312 (2007) (requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim). Moreover, the March 2013 VA opinion is based on a finding that there was no clinical evidence to support a diagnosis, treatment, or injury of the left ankle during service, while the record indicates in-service complaints of such and a notation of bilateral ankle sprains and weak ankles at separation. In light of the above considerations, the Board finds that a complete examination and resulting medical opinion addressing the nature and etiology of any current left foot/ankle disabilities other than left foot metatarsal fracture residuals, to include specifically identifying all such disabilities, is needed to have sufficient medical evidence to decide the Veteran's claim. 38 C.F.R. § 3.159 (c)(4) (VA's duty to assist includes obtaining a medical examination or opinion where necessary to decide the claim.). In addition, the record reflects that there are outstanding VA treatment records which may be pertinent to the issue on appeal. Specifically, the May 2011 VA examination notes x-ray reports from 2008 and 2010; the Veteran also reported receiving arch supports from VA in 2009 during the examination. The July 2012 VA examination notes review of CPRS (Computerized Patient Record System) records not in the claims file related to foot treatment. Moreover, the Veteran stated that she sought VA podiatry treatment in a June 2012 written statement. Any relevant written opinion or other notations provided in these treatment records, if available, could be supportive of the Veteran's claim. As such, any outstanding VA treatment records pertinent to the Veteran's claims should be obtained and associated with the claims file. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any left foot/ankle disorder. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also attempt to obtain the VA treatment records referenced in the May 2011 and July 2012 VA examination reports. 2. After obtaining any identified and outstanding records, the Veteran should be afforded a VA examination with a different VA examiner to determine the nature and etiology of any current left foot/ankle disorder other than left foot fifth metatarsal fracture residuals. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements and provide an opinion as to the following: a. The examiner should identify any current left foot/ankle disorder other than left foot fifth metatarsal fracture residuals. Then, for each diagnosed disorder, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during or is otherwise etiologically related to service. b. Additionally, for each currently diagnosed disorder above, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by a service-connected disability. The examiner is asked to specifically consider the following left foot/ankle disorders reflected in the record, as well as any additional disorders found on examination: left ankle peroneal tendonitis noted as due to ankle instability with limb length discrepancy, left ankle calcaneal spur, left lower charming peroneal tenosynovitis, and left second metatarsal stress fracture. See treatment records from Drs. V.G. (2008) and K.C. (2010, 2012) and May 2011 VA examination; current symptoms of left foot hallux valgus and plantar fasciitis (the second disorder based only on a report by the Veteran as of the date of this order) (July 2012 VA examination); and left ankle disorder of soft tissue condition consistent with bursitis and/or strain of the joint (March 2013 VA opinion). In relevant part, the Veteran is in receipt of service connection for left foot fifth metatarsal fracture residuals and right ankle injury residuals. Service treatment records show left foot/ankle complaints and treatment. The supporting rationale for all opinions expressed must be provided. If the required opinion cannot be provided, the examiner should explain why the opinion cannot be provided. 3. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures. 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). _________________________________________________ H. N. SCHWARTZ 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).