Citation Nr: 1320463 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-28 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1980 to August 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In April 2012, the Board denied the Veteran's claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an Order, dated in January 2013, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the Motion. 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 seeks service connection for a bilateral foot disorder. She claims that her current bilateral foot disorder is related to her military service caused by having to wear combat boots. She also states that she has had pes planus since service entrance. (See, January 2008 notice of disagreement). Her service treatment records show that she was treated for a blister on the ball of the left foot in April 1983. When the Veteran was treated by VA in March 2006 she reported having foot pain for years. She has been found to have bilateral Tailors bunion and 5th hammertoe deformity. A March 2006 examiner noted the Veteran had chronic foot pain, likely from chronic strain/sprain and/or bunion. She underwent a left Tailors bunionectomy and 5th toe arthrolasty in October 2006. The Veteran has requested that she be examined by VA to determine the nature and etiology of her bilateral foot disorder. Her representative has argued that the Veteran should be examined by VA since she was treated in service for foot complaints and that she has had bilateral foot pain persisting for years. The Veteran is competent to attest to having foot pain in service and continuing thereafter. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4) (2012). The U.S. Court of Appeals for Veterans Claims (Court) has held the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Based on the foregoing, the Board finds that an adequate VA etiology opinion is required to facilitate appellate review in order to determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's current bilateral foot disorder had its onset in service or was otherwise related to service. Id; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claim. Based on her response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that she is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. The Veteran must be afforded the appropriate VA examination to determine whether any bilateral foot disorder found is related to her military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed foot disorder was incurred in or aggravated by the Veteran's active duty service. In providing the opinion, the VA examiner is asked to address the competent lay statement from the Veteran that she has had foot pain since service and that she had flat feet since service entrance. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The RO must notify the Veteran that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and her representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ L.M. BARNARD Acting 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).