Citation Nr: 1320122 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-03 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder. 2. Entitlement to service connection for the residuals of a traumatic brain injury, claimed as a chronic headache disorder. ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from May 1992 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Subsequently, the Board remanded this matter for additional development in June 2011. 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 on his part. REMAND The Veteran seeks service connection for a bilateral foot disorder. As a result of the Board's June 2011 remand the Veteran was provided a VA examination in September 2011 and diagnosed with pes planus and plantar fasciitis. A June 2012 addendum included the opinion that the claimed conditions were less likely than not incurred in or caused by service because service treatment records showed only a complaint in 1992 for a mild left ankle sprain. Instead, the examiner felt that it was more likely than not that the Veteran's current bilateral foot condition was related to chronic degenerative changes associated with aging. The September 2011 examination report and its addendum are fundamentally flawed. First, the examiner's review of the service treatment records does not appear complete. She made no reference to the July 1992 note that described the Veteran as sustaining a soft tissue injury to both ankles and legs after falling in a hole. There was also no discussion of another July 1992 record that notes the Veteran's complaint of poor foot circulation, lack of sensation in both feet, and pain for two weeks as a result of an injury and diagnosed a stress fracture of the right leg and sprain of the left ankle. The examiner's opinion also ignored the Veteran's written lay evidence found in his August 2010 Notice of Disagreement and February 2011 VA Form 9, Substantive Appeal, to the effect that his foot disorder began during service in boot camp. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting lay evidence is competent to establish symptomatology and may provide sufficient support for a service connection claim). More importantly, the Board finds the VA examiner's opinion insufficient as it merely expresses a conclusion related to aging and does not provide adjudicators with a rationale for her opinion. The VA examiner's June 2012 addendum fails to explain why the Veteran's pes planus and plantar fasciitis are age-related medical conditions as opposed to being related to any injury or disease the Veteran may have suffered in service. The Board emphasizes that lay evidence may establish the existence of a current disorder capable of lay observation, to specifically include varicose veins, tinnitus, and flat feet. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); and Falzone v. Brown, 8 Vet. App. 398, 405 (1995). Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, in this case the VA examiner cannot rely on the mere passage of time to find there is no relationship between the Veteran's foot complaints since boot camp and his current pes planus and plantar fasciitis. The examiner must consider the Veteran's contentions of symptomatology ever since service and provide a rationale for her medical conclusions to assist VA adjudicators. Therefore, on remand, after any additional treatment records have been associated with the claims file, the claims file shall be forwarded to the September 2011 VA examiner, if she is still available, so that she may clarify her medical opinion in light of the July 1992 service treatment record, any additional medical records produced, and the Veteran's contentions of foot pain since service. The VA examiner is requested to provide a full explanation of why she believes the Veteran's pes planus and plantar fasciitis are not related to service but are more likely related to chronic degenerative changes associated with aging. Concerning the Veteran's claim for service connection for a headache disorder, the Veteran asserted in his Notice of Disagreement and in an October 2009 signed statement that his headaches began in June 1993. Service treatment records show that the Veteran was involved in a serious motor vehicle accident in June 1993 that took the life of a fellow Marine and led to some loss of memory. While a CT scan of the head and brain was negative, records show treatment and surgery for a deep facial laceration. There is little doubt that he sustained a head injury. However, with respect to whether or not he suffered a TBI, which results in a chronic headache disorder, the Board notes that service treatment records do not show treatment of any headache complaints in service. Further, while post-service treatment records note the Veteran's complaints of headaches, which he reports as appearing off and on since service, a diagnosis of a TBI has not been made. There is also no competent medical opinion that relates the Veteran's current headache disorder with his in-service head injury. Because his current headache complaints are consistent with the Veteran's alleged claimed disability, and because he was involved in a serious motor vehicle accident in service that led to some loss of memory as well as surgery for facial lacerations, the Board finds that this Veteran should be afforded a VA examination and medical opinion to determine whether his symptoms reflect a headache disability, and, if so, whether such disability is related to the in-service motor vehicle accident or is otherwise related to his period of active duty. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (noting when VA should provide a medical opinion in service connection cases). The RO/AMC also shall obtain and associate with the claims file all outstanding VA and private medical records related to the Veteran's foot disorders and headache complaint. The claims file only contains VA treatment records from August 2006 to February 2010, along with VA treatment records from May 2008 to July 2012 found in his Virtual VA eFolder. Therefore, any additional records from the Dallas VA Medical Center (VAMC) or the Fort Worth VA outpatient clinic should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, who treated the Veteran for any foot disorders or headache complaints and whose records are not found within the claims file. After the Veteran has signed the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. Regardless as to whether or not he responds to this inquiry, obtain any outstanding records of evaluation and/or treatment from the Dallas VAMC or the Fort Worth VAOC, for the period since July 2012. 2. After the development requested above has been completed, the RO/AMC shall forward the claims file, and a copy of this Remand, to the September 2011 VA examiner and request that she clarify her medical opinion on whether it is at least as likely as not (50 percent or greater probability) the Veteran's bilateral foot disabilities are related to service. In providing her rationale for whether there is a nexus between pes planus and service and plantar fasciitis and service, the VA examiner shall consider the Veteran's contentions that his foot pain began during boot camp in service. Consideration must also be given to the July 1992 service treatment records that document the Veteran's complaints of injuring both ankles, experiencing poor circulation and loss of sensation, and being diagnosed as having a stress fracture and ankle sprain. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). If the September 2011 VA examiner is not available, then the Veteran should be scheduled for another VA examination and medical opinion. 3. After the development requested above has been completed, the RO/AMC shall schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed headache disorder. The entire claims file, including a copy of this Remand, must be made available to the examiner for review. All tests deemed necessary by the examiner should be undertaken. Based on the examination and record review, the examiner should provide an opinion as to the following: (a) whether any headache disorder, to include migraines, is currently manifested and, if so, a diagnosis of that disorder should be made; and (b) whether it is at least as likely as not (a 50 percent probability or greater) that any such currently manifested headache disorder is related to the Veteran's June 1993 motor vehicle accident, or is otherwise etiologically related to service. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Thereafter, the RO/AMC shall readjudicate the Veteran's claims on appeal with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this Remand. If the decisions with respect to the claims remain adverse to the Veteran, he should be furnished a Supplemental Statement of the Case and afforded an appropriate period of time within which to respond thereto. 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). These claims 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 A. HERMAN 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).