Citation Nr: 1326866 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-19 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran had active service from July 1987 to June 1991. These matters are on appeal from a November 2010 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Newington, Connecticut. 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 Although the Board sincerely regrets the delay, a review of the evidentiary record reveals that the claims for service connection for a right and left foot disability must be remanded for further evidentiary development and to ensure due process, for reasons explained below. The Veteran contends that he has a bilateral foot disability that was incurred in or aggravated by service. Service treatment records include an April 1987 enlistment examination which indicates a diagnosis of flatfeet. The accompanying report of medical history indicates a fracture of the 2nd metacarpal in 1986 although it is unclear whether it was on the right or left foot. A May 1989 clinical note indicates a complaint of right foot pain of two months and assessment of corns on some of the toes on the right foot and onychomycosis. An October 1990 clinical note indicates a complaint of numbness in the left foot for three days and assessment of rule out cold weather injury. The final assessment appears to be" neurologic compression." On VA feet examination in October 2010, the Veteran presented with a history of bilateral foot pain since 1989 or 1990 and denied having any problems with his feet prior to entering service. He attributed his foot calluses and hammer toes to wearing rubber boots during service. On examination, the examiner observed calluses on the Veteran's feet likely related to hammer toes and abnormal weight bearing. The examiner diagnosed bilateral pes planus status post right tailor's bunionectomy with DIPJ arthrodesis of the right foot and hammer toes on the left foot. The examiner opined that there is no current data to support a finding that the Veteran's current foot condition arose from service 20 years ago. There was no discussion of the treatment that the Veteran received in service or his documented preexisting pes planus. Indeed, while he seemed to suggest that there was no evidence to support direct service incurrence, the examiner did not address the question of aggravation of a preexisting foot disorder - pes planus. See 38 C.F.R. § 3.306. A better opinion is thereby required. With regard to VA treatment records, a review of the paper claims file shows that the most recent most recent VA treatment record is dated in December 2010. Consequently, as records dated since December 2010 might contain information relevant to the Veteran's claims on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA outpatient treatment records for the period since December 2010. Any outstanding treatment records obtained must be physically associated with the paper claims file or with the electronic file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 2. After the above development has been completed and all outstanding records have been associated with the claims file, the Veteran should be scheduled for a VA feet examination by an appropriate physician to address the nature and etiology of his claimed bilateral foot disability. All indicated tests and studies are to be performed. The claims file must be made available to the examiner for review in conjunction with the examination, and the examiner must indicate in the examination report that the claims folder was so reviewed. With respect to the Veteran's bilateral pes planus, which was diagnosed at service enlistment (thereby rebutting any presumption of soundness), the examiner should state whether there is clear and unmistakable evidence (un-debatable) that the disorder was not aggravated beyond its natural progression by service (i.e., did not undergo a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability). If it is determined that the Veteran's preexisting pes planus was aggravated by service, the examiner should next opine whether it is at least likely as not (a 50 percent probability or greater) that there is an etiological relationship between any current foot disability and the in service aggravation. As for any disability of the feet other than bilateral pes planus, the examiner should provide an opinion as to whether it is at least likely as not (a 50 percent probability or greater) that the foot disorder had its onset in service or is otherwise etiologically related thereto. In rendering the requested opinions, the physician should specifically consider and discuss the Veteran's contentions, the lay statements of record, his service treatment records, and his VA medical records. Reference should be made to the May 1989 service record that discusses corns and calluses of the right foot, the October 1990 record that records the Veteran's complaints of numbness of the left foot, and his report of experiencing bilateral foot pain since service. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Thereafter, take adjudicatory action on the service connection claims. If the benefit sought remains denied, furnish a supplemental statement of the case (SSOC) to the Veteran and his representative and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The SSOC should contain, among other things, a summary and discussion of the relevant evidence received since the SOC was issued in August 2011. 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). These claims 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 A. HERMAN 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).