Citation Nr: 1324533 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 06-32 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for bilateral leg disability, claimed as peripheral neuropathy. 2. Entitlement to service connection for bilateral foot disability, claimed as peripheral neuropathy and pes planus. REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In February 2006, the RO denied service connection for peripheral neuropathy of the feet and legs. In August 2008, the RO denied service connection for a bilateral foot disability. In April 2010, the Board noted that while the issue of service connection for bilateral foot disorder was adjudicated separately from peripheral neuropathy of the lower extremities, the Board combined the issues of entitlement to service connection for a bilateral foot disorder and peripheral neuropathy, and made a separate issue of entitlement to service connection for bilateral leg disorder. In April 2010 and May 2012, the Board remanded these issues for additional development. The issue of new and material evidence to reopen a claim for service connection for diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 As noted, the Board remanded the Veteran's pending claims for service connection for a bilateral foot disability and service connection for a bilateral leg disability for further development in May 2012. In February 2013, the RO readjudicated the claims in a supplemental statement of the case after VA examinations in July 2012 (with an addendum dated in December 2012) and December 2012. The May 2012 remand by the Board directed the VA examination to address the Veteran's contentions that he has peripheral neuropathy of the feet and pes planus, both as a result of service. The Board notes that the VA examination for July 2012 addressed the claim for service connection for a bilateral foot disability but was specifically directed to determine whether the Veteran had a foot disability other than a flat foot disability. Pes planus is flat feet. Buckley v. West, 12 Vet. App. 76, 79 (1998). The examiner thus never stated if the Veteran has, as he contends, pes planus/flat feet, and if so, whether it is related to service. As to the bilateral leg disability, in December 1964, the Veteran was treated for right leg pain, the impression was muscle spasm. In March 1965, the Veteran was treated for pain in both feet. The separation examination in August 1968 notes that the Veteran had leg cramps due to prolonged standing and walking on the flight line. Accordingly, the Board's remand requested a medical opinion commenting on the clinical significance of the treatment in service and whether the Veteran had a neurological disability related to service. A VA examination in October 2006 noted the Veteran's neurological symptoms were inconsistent with a diabetic complication, but could not reach an opinion without resort to speculation. In an August 2010 VA examination, the Veteran was diagnosed with restless leg syndrome and cramps and the examiner noted the Veteran's numbness in his feet for several years, but did not comment on whether the restless leg syndrome, occasional leg cramps, or feet numbness were related to service. The July 2012 VA examination commented on the service treatment notations from an orthopedic perspective, but did not determine whether the Veteran's current neurological symptoms are related to a neurological disability resulting from service. The December 2012 VA examination diagnosed peripheral neuropathy as likely as not related to diabetes, but did not comment on the prior October 2006 VA examination that found a neuropathy inconsistent with diabetic peripheral neuropathy. That examiner also did not comment on whether the Veteran had any neurological disability (restless leg syndrome, peripheral neuropathy, etc.) directly related to service including the in-service treatment noted in 1964 and 1965 and the symptoms disclosed at separation. Accordingly, the VA examinations are inadequate as they did not discuss whether the Veteran has a neurological disability of the legs and feet directly related to service. Thus, there has not been substantial compliance with the directives of the May 2012 remand. In the case of Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. In addition, in April 2013, the Board received a statement from the Veteran and medical records from a private medical provider, which indicated a diagnosis of plantar fasciitis and a diagnosis of peripheral neuropathy. A letter was sent to the Veteran and his service representative in June 2013 asking whether the Veteran wished to waive initial review of this evidence by the Agency of Original Jurisdiction (AOJ). No response has been received. As the Veteran has not expressly waived initial review by the AOJ, such evidence must be reviewed and considered by the RO in readjudicating the claims. See 38 C.F.R. § 20.1304(c) (2012) (any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran a VA foot examination to determine the current nature and likely etiology of the current bilateral feet problems, to specifically include whether the Veteran currently has pes planus. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be performed. A complete rationale for any opinion offered must be provided. The examiner must specifically determine if peripheral neuropathy of the feet, pes planus, or plantar fasciitis are present. Based on the examination and review of the record, the examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed foot disability (to include peripheral neuropathy of the feet, pes planus, or plantar fasciitis) had its onset in service or is otherwise the result of a disease or injury incurred in service. The examiner should address the clinical significance that the Veteran was treated for right leg pain and muscle spasm in December 1964; the Veteran was treated for pain in both feet in March 1965 and the separation examination in August 1968 noted leg cramps due to prolonged standing and walking on the flight line. The VA examiner is also asked to consider that the Veteran is competent in describing symptoms at the time which supports a later diagnosis by a medical professional. 2. Provide the Veteran a VA neurological examination to determine the current nature and likely etiology of any current bilateral neurological problems, to specifically include whether the Veteran currently has a restless leg syndrome disability, peripheral neuropathy disability, other than and in addition to diabetic peripheral neuropathy, or any other neurological disability causing the Veteran's symptoms such as leg cramps. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be performed. A complete rationale for any opinion offered must be provided. The examiner must specifically determine if peripheral neuropathy of legs, other than a diabetic peripheral neuropathy, or restless leg syndrome is present. Based on the examination and review of the record, the examiner must address whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed leg disability, to include peripheral neuropathy (other than diabetic peripheral neuropathy) or restless leg syndrome, had its onset in service or is otherwise the result of a disease or injury incurred in service. The examiner should address the clinical significance that the Veteran was treated for right leg pain and muscle spasm in December 1964; the Veteran was treated for pain in both feet in March 1965 and the separation examination in August 1968 noted leg cramps due to prolonged standing and walking on the flight line. The examiner should also address the October 2006 VA examination findings that the Veteran's neurological symptoms were inconsistent with a diabetic complication. The VA examiner is also asked to consider that the Veteran is competent in describing symptoms at the time which supports a later diagnosis by a medical professional. 3. After reviewing all the evidence in the file, including evidence that has been associated with the claims file since the issuance of the supplemental statement of the case in February 2013, readjudicate the claims for service connection for a bilateral leg disability and service connection for a bilateral foot disability. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and 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 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).