Citation Nr: 1326494 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 12-29 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral foot disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active military service from December 1973 to June 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a claim dated in March 2010, the Veteran claimed service connection for a bilateral foot condition. In a March 2011 VA examination report, the Veteran was diagnosed with bilateral plantar fasciitis and bilateral chronic plantar and calcaneal spurs. The June 2011 rating decision on appeal denied service connection for bilateral plantar fasciitis and bilateral chronic plantar and calcaneal spurs. In her October 2012 substantive appeal, the Veteran stated she believes she has neuropathy of her toes and the balls of her feet as a direct result of marching in men's boots during service. The Veteran believes the neuropathy caused the bilateral plantar fasciitis and bilateral chronic plantar and calcaneal spurs. To ensure that this Board adjudication reflects that the scope of the claim adjudicated herein on appeal is fully encompassing of the appellant's description of the claim, and the information of record, the Board has characterized the issue on appeal as service connection for bilateral foot disability, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012). A remand is necessary in this case so VA can meet its duty to assist the Veteran in obtaining evidence to substantiate her claim of entitlement to service connection for bilateral foot disability. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2012). The Board concludes that the report of a March 2011 VA examination of the feet is not adequate for the purpose of adjudicating the Veteran's claim. In March 2011, the Veteran underwent a VA examination of the feet, and was diagnosed with bilateral chronic plantar and calcaneal spurs and bilateral plantar fasciitis. The examiner provided an opinion that the Veteran's bilateral foot condition was less likely as not caused by or a result of service. The examiner relied on the Veteran's statements, physical examination, tests, records and medical literature. However, the examiner also stated that review of the service treatment records (STRs) did not provide evidence of a foot condition during service. The March 2011 VA examiner's opinion does not account for the Veteran's reported bilateral foot pain in August 1974, which is documented in the STRs. The March 2011 VA examiner did state that the record relating to the 1977 back of heel cyst identified by the RO could not be found. The Board notes that this record may not exist and may have been misread by the RO because there is a 1977 record relating to a back of head cyst, and the record is written in cursive writing that could be difficult to decipher. However, the March 2011 VA examiner's opinion fails to account for the August 1974 record of foot pain. An opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, because the March 2011 VA examiner incorrectly relied on a finding that the STRs did not show any record of foot pain in service, the opinion has little probative value. The probative value of a medical opinion comes from the factually accurate, fully articulated, and sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As described above, subsequent to the March 2011 VA examination, the Veteran stated in October 2012, that she believes she has neuropathy in her toes and the balls of her feet as a direct result of marching in men's boots during service. She believes the bilateral chronic plantar and calcaneal spurs, and bilateral plantar fasciitis are the result of the neuropathy. This and other subsequent lay statements by the Veteran must be taken into account by the VA examiner on remand. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the foregoing, the Board finds that another VA examination is necessary for the purpose of determining the nature and etiology of the Veteran's bilateral foot disability. Finally, as the Veteran's claim is being remanded for other matters, the Board concludes updated private treatment records should be obtained and associated with the record. The Veteran stated, in October 2012, that she has seen Dr. R. Z. for her foot problems since living in Michigan. Although treatment records from Dr. R. Z. dated from June 2007 to October 2007 were submitted by the appellant and are of record, the Board is unclear as to whether such records are complete. She also stated she sought treatment from a podiatrist in Colorado for about a year. Reports of such treatment are not of record. Complete private treatment records should be obtained, to the extent possible. Accordingly, the case is REMANDED for the following action: 1. Obtain the necessary authorization from the Veteran and then attempt to obtain records of treatment of the Veteran for foot disability, not already of record, including from the podiatrist in Colorado whom the Veteran referenced in an October 2012 statement. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents. 2. Obtain the necessary authorization from the Veteran and then attempt to obtain all records of treatment of the Veteran since service, and to date, from Dr. Roger T. Zeratsky. All attempts to obtain these records must be documented in the claims file. The Veteran and her representative must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA examination in order to ascertain the nature and etiology of all foot disability, including bilateral plantar fasciitis, bilateral chronic plantar and calcaneal spurs, and neuropathy to the toes and balls of the feet, if present at any time of record. The entire claims file should be made available to the examiner for review, to include a complete copy of this remand, and the examination report should reflect that such review occurred. Upon examination of the Veteran and review of the record, the examiner must respond to the following: a. If any foot condition, to include bilateral plantar fasciitis, bilateral chronic plantar and calcaneal spurs and neuropathy to the toes and balls of the feet is diagnosed, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosis is related to active service or any incident of service, to include reported wearing of ill-fitted boots while marching. b. If neuropathy is diagnosed, and linked to active service based on the prior opinion, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the neuropathy caused or aggravated any other bilateral foot condition to include plantar fasciitis or chronic plantar and calcaneal spurs. The examiner must consider the Veteran's STRs, including the August 1974 record of foot pain, and the Veteran's lay statements of record. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner must provide a complete rationale for any opinion expressed, based on the examiners clinical experience, medical expertise, and established medical principles. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 5. 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). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If any benefit sought is not granted, furnish the Veteran and her representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant 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 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. 2013). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).