Citation Nr: 1326884 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-20 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2003 to May 2004 and from September 2004 to November 2005. She received the Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO denied entitlement to service connection for a bilateral foot disability. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection 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); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. In this case, the Veteran has reported bilateral foot pain and the use of shoe inserts. A February 1998 report of an examination conducted for purposes of entry into the Army Reserve reveals that her feet were abnormal in that the 2nd, 3rd, 4th, and 5th toes were hammer-like. She contends that she began to experience foot pain while stationed in Iraq between 2003 and 2004 with the "855th QMCO," at which time she stood in wood and metal guard towers. She was advised to perform various foot stretches and was given shoe inserts. She has reportedly continued to experience foot symptoms and use shoe inserts in the years since that time. However, there is some evidence to the contrary. For example, service personnel records indicate that the Veteran was stationed in Iraq with the "855th QMCO" from April 2003 to May 2004. She reported on an April 2004 report of medical history completed for purposes of separation from service that she was not experiencing, nor had she ever experienced, any foot trouble. In sum, there is competent evidence of a current bilateral foot disability and evidence of foot problems in service. There are also reports of a continuity of symptomatology in the years since service, suggesting that a current bilateral foot disability may be related to service. Moreover, there is medical evidence of a possible pre-existing foot disability which may have been aggravated in service. Thus, VA's duty to obtain an examination as to the nature and etiology of any current bilateral foot disability is triggered. Such an examination is needed to determine whether the Veteran has a current foot disability and to obtain a medical opinion as to the etiology of any such disability. Furthermore, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to her claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The agency of original jurisdiction (AOJ) attempted to obtain all of the Veteran's service treatment records from the Records Management Center and her Army Reserve/Army National Guard units. Although some service treatment records have been obtained, it appears as if some records remain missing and the AOJ made a formal finding in February 2011 that some such records were unavailable. However, where service records are missing, VA has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, it does not appear as if any efforts have been undertaken to search alternate sources of service treatment records. Also, the AOJ did not request any service treatment records from the National Personnel Records Center. Thus, a remand is also necessary to attempt to obtain any additional service treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center, the Army Reserve, the Army National Guard, and any other appropriate source and request all available service treatment records. If any service treatment records are unavailable, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual rewrite, M21-1MR. Specifically request records of any treatment reported by the Veteran. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. If any service treatment records are missing or are otherwise unavailable, this fact shall also be documented and a formal finding of unavailability shall be made with notice to the Veteran and her representative. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional service treatment records, schedule the Veteran for a VA examination to determine whether any current foot disability was incurred or aggravated in service. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along any records obtained pursuant to this remand, must be sent to the examiner for review. With respect to any current foot disability identified (i.e. any foot disability diagnosed since October 2010), the examiner shall answer the following question: Is it at least as likely as not (50 percent probability or more) that the current foot disability had its onset in service, is related to the Veteran's reported foot problems in service, was permanently aggravated beyond its natural progression during a period of active service, or is otherwise the result of a disease or injury in service? In formulating the above opinion, the examiner must acknowledge and comment on any foot disabilities diagnosed since October 2010, any instances of treatment for foot problems in the Veteran's service treatment records (including the evidence of foot problems on the February 1998 report of an examination conducted for purposes of entry into the Army Reserve), and her reports of foot problems in service and in the years since that time. The examiner must provide reasons for each opinion given. The examiner is advised that the Veteran is competent to report foot problems in service, her symptoms, and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports regarding symptoms or continuity thereof, the examiner must provide a reason for doing so. The absence of evidence of treatment for foot problems in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner determines that he or she cannot provide an opinion without resorting to speculation, the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. The AOJ shall review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 5. If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. The Veteran 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 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). _________________________________________________ J. A. MARKEY 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).