Citation Nr: 1321371 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-46 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to December 1972, with additional service in the Army Reserves, and in the Army National Guard of New Mexico. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND The Veteran claims that a preexisting bilateral foot disability was aggravated by active service. Specifically, the Veteran's service medical records show that, on his May 1968 service enlistment examination report, he was found to have preexisting pes planus which was moderate but asymptomatic. The Veteran claims that this preexisting foot disability was aggravated by a fall he experienced during service. The Veteran's August 1972 service separation medical examination report specifically stated that the Veteran had experienced recurrent back pain since 1969, when he was injured in a fall. While that report did not mention any foot injury, in a March 1973 VA medical examination report, conducted only a few months after the Veteran's separation from service, the Veteran reported that in the spring of 1969 he had jumped or fallen off of a fire truck, first landing on his heels and then falling down, after which he began experiencing back pain. Numerous National Guard and post-service medical records document complaints and treatment for various foot disabilities following the Veteran's separation from active service. Accordingly, there is medical evidence of record that the Veteran's preexisting foot disability was asymptomatic when he entered service, he experienced an injury during active service which involved his feet, and he has current diagnoses of symptomatic bilateral foot disabilities. While the Veteran was provided with a VA fee-based medical examination in July 2007, that report did not comment on whether the Veteran's preexisting bilateral foot disability was aggravated by service. Therefore, the Veteran has not been provided with a VA examination to determine whether his preexisting bilateral foot disability was aggravated by service. Therefore, a new medical examination is needed to determine the etiology of any foot disability found. 38 C.F.R. §§ 3.159(c)(4), 3.327 (2012). The Board also notes that the Veteran and his representative have submitted copies of VA medical records which document examination and treatment of his bilateral foot disability in March 2013 and May 2013. Those records are not currently associated with the Veteran's claims file, and his Virtual VA electronic records do not include any medical records dated after December 2012. Accordingly, while the case is on remand, an attempt must be made to obtain any additional VA records which exist but have not been associated with the claims file. 38 C.F.R. § 3.159(c)(2) (2012). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated or examined him for any foot disability. An attempt must be made to obtain, with any necessary authorization from the Veteran, copies of any pertinent medical records identified which have not been previously secured, to specifically include all VA medical records dated since December 2012. The Veteran may also submit the records himself. If, after making reasonable efforts to obtain these records, the records are not obtained, notify the Veteran and identify the specific records not obtained; briefly explain the efforts made to obtain the records; describe any further action to be taken with respect to the claim; and inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any foot disability. The examiner must review the claims file and the examination report should note that review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's preexisting bilateral foot disability underwent a permanent increase in severity during active duty service, to specifically include as due to the 1969 active service injury. If so, the examiner should provider an opinion as to whether any permanent increase in severity was due to the natural progress of the disorder. The examiner should state whether there is clear and unmistakable evidence that the preexisting bilateral foot disability was not aggravated during service. The examiner should also opine as to whether it is at least as likely as not (50 percent or more probability) that any preexisting bilateral foot disability was aggravated during active duty for training with the Army Reserves or National Guard. If any current foot disability is attributable to factors unrelated to service, the examiner should specifically so state. A complete rationale for all opinions must be provided. 3. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).