Citation Nr: 1326533 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-09 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for a bilateral foot disorder other than a great left toe fracture or callosities on the balls of both feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to November 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision, which denied the Veteran's claim for service connection for bone spurs of both feet. The Board notes that this issue is now being characterized so as to include a bilateral foot disorder to include bone spurs of both feet. In recharacterizing this claim, the Board has considered a holding of the Court that, although a Veteran's claim identified schizophrenia or schizoaffective disorder only, the Board's analysis is not necessarily limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including the Veteran's description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the Board notes that in an August 2013 Informal Hearing Presentation, the Veteran's representative has contended that additional disabilities identified by a June 2013 VA examiner are an inferred part of the Veteran's claim for a bilateral foot disability. The Board notes that on VA examination in June 2013, the Veteran was diagnosed with hallux valgus/bunions, hammer toes, callosities (which the Veteran is already service-connected), and degenerative joint disease of the right first metatarsal phalangeal joint (MPJ). As such, this issue on appeal has been recharacterized to consider all reported symptom and disabilities of his bilateral feet in accordance with Clemons. However, the Board also notes that the Veteran was previously denied a claim for service connection for a fracture of his great left toe in a March 1981 rating decision. The Veteran did not disagree with this decision, nor has he expressed a desire to reopen that previously denied claim. As the RO has already considered the question of service connection for a great left toe fracture, and the Veteran did not yet appeal the adverse decision, the Board finds no basis for additional development and adjudication pursuant to Clemons for this particular disability. Additionally, as noted above, the Veteran is already in receipt of service connection for callosities on the balls of both feet. Accordingly, the Veteran's current claim for service connection a bilateral foot disability is characterized as noted above. In March 2012, a videoconference hearing was held before the undersigned Veterans Law Judge at Boise, Idaho, RO. A transcript of the hearing is of record. In a May 2012 decision, the Board remanded this issue for additional development. 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 Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for a bilateral foot disorder other than a great left toe fracture or callosities on the balls of both feet. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and disease or injury in service is low. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Per the May 2012 Board remand instructions, the Veteran underwent a VA examination in June 2013. The examiner opined that the Veteran's bone spurs were not related to service and not aggravated by service as they developed 30 years after his service was completed. The examiner also determined that the Veteran's claimed condition was less likely than not aggravated beyond its natural progression by the Veteran's service-connected callosities. The examiner added that neither the Veteran's bone spurs or bunions were related to service in any way as he did not have bone spurs or bunions in service. The examiner noted that the Veteran's spurring along the lateral aspect of his right MP joint was related to the correction surgery he had for the bunion on that foot. While the examiner determined that the Veteran's bone spurs were not due to his service-connected callosities, it appears as though he limited his opinion to the Veteran's bone spur disability. As noted above, the examiner also diagnosed the Veteran with hallux valgus/bunions, hammer toes, and degenerative joint disease of the right first MPJ. As a result of these diagnoses, the Veteran's claim has been expanded to encompass these disabilities. See, Clemons, supra. As the examiner did not address whether the Veteran's service-connected callosities has caused or aggravated his bilateral foot disabilities, to include hallux valgus/bunions, hammer toes, and degenerative joint disease of the right first MPJ, the Board finds that the evidence currently of record is insufficient to resolve the claim and that further medical examination in connection with this claim is warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be provided an examination by an appropriate VA physician to evaluate the etiology of any bilateral foot disorder other than a great left toe fracture or callosities on the balls of both feet. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral foot disorders, to include bones spurs, hallux valgus/bunions, hammer toes, and degenerative joint disease of the right first MPJ, is related to the Veteran's service, to include as proximately due to or permanently aggravated beyond its natural progression by the service-connected callosities disability. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. A detailed rationale for any opinion expressed should be provided. 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). _________________________________________________ MICHAEL LANE 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).