Citation Nr: 1327082 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 09-08 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for right foot disability. 2. Entitlement to service connection for left foot disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In his March 2009 substantive appeal, the Veteran requested a Board hearing, which was scheduled for January 2013. He stated that he would be unable to appear for that hearing due to health problems and was rescheduled for a hearing in April 2013. He again failed to appear for that hearing due to health problems, and was rescheduled for a hearing in August 2013. However, he failed to report for this hearing and provided no explanation for his failure to report. His hearing request, therefore, is deemed withdrawn. 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 A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Foot examination on the Veteran's entrance into service was normal. Therefore, he is entitled to the presumption of soundness regarding his feet. However, the Veteran underwent surgical correction for bilateral overriding fifth toes (hammertoes) in service. On the November 2006 VA examination report, the Veteran stated that he was born with overriding bilateral fifth toes. On his January 2007 notice of disagreement, the Veteran again stated that he was born with overriding bilateral fifth toes, but the rigors of military life and military footwear aggravated the condition. He also stated that he has had foot pain since service. To rebut the presumption of soundness, the government must show by clear and unmistakable evidence that the disease or injury existed prior to service and that it was not aggravated in service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). The base line to measure any worsening of a disability is the Veteran's disability as shown in all of his medical records, not on the happenstance of whether the Veteran was symptom-free when he enlisted. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The Board finds that that VA examination report does not discuss the claimed foot disabilities in sufficient detail so that the Board's evaluation of them is an informed determination. Thus, the Board has no discretion in the matter and must remand the claim for a new examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding records pertaining to his bilateral foot disabilities that are not already of record. After obtaining the necessary authorization forms from the Veteran, should obtain any pertinent records and associate them with claims file. Any negative response should be in writing and associated with the claims file. Regardless of the Veteran's response, any VA records from February 2010 to the present should be added to the claims file. 2. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed his in-service and post-service right and foot disability symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After physically or electronically associating any pertinent, outstanding records with the claims folder, schedule for an appropriate VA examination to determine the nature, extent, onset, and etiology of any foot disability found to be present. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should state the likelihood that any foot disability found to be present existed prior to service. If the examiner concludes that any foot disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having a foot disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the Veteran's report of a continuity of foot symptoms since service. The rationale for all opinions expressed should be set forth in a legible report. 4. Then readjudicate the appeal. If the claim continues to be denied, send the Veteran and his representative a supplemental statement of the case and give them time to respond. 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 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). _________________________________________________ STEVEN D. REISS 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).