Citation Nr: 1330825 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 13-01 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In that decision, the RO denied entitlement to service connection for right foot condition. 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 The Veteran claims that he injured his right foot in service and received treatment therein. He expresses the belief that his current right foot problems were caused by the Army's issuance of boots that were too wide for his narrow foot. The Veteran also indicated that he has continued to have right foot problems since service. The service treatment records do not contain any notations regarding the right foot and separation examination of the feet was normal. In the November 2012 statement of the case, the RO listed their electronic review of treatment reports from VA Medical Centers and a VA clinic, but these records do not appear in either the Board's paperless claims processing systems, Virtual VA or the Veterans Benefits Management System (VBMS). The RO indicated in the rating decision and statement of the case that VA treatment records show he was seen for right foot pain in October 2010 and was diagnosed with intermittent pain in the right heel from gout, and that gout had been noted since 2009. Under the VCAA, VA must provide an examination when there is competent evidence of persistent or recurrent symptoms of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). While competent evidence is required to show persistent or recurrent symptoms of disability, competent evidence is not required to indicate that the current disability may be associated with service. Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). Lay testimony can satisfy either element, but a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the "may be associated" element. Id. at 1278-79. Here, the Board finds there is more than a conclusory generalized lay statement. The Veteran's statements are specific as to how he incurred his claimed disability and that he continued to have symptoms since service. The absence of contemporaneous evidence in the service treatment records is not fatal to the claim. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). There is also competent evidence of recurrent right foot pain, which could be indicative of disability. The above reflects that there is sufficient evidence of current right foot symptoms that may be associated with service to warrant a VA examination. Remand for a VA examination as to the nature and etiology of any current right foot disability is therefore warranted. Before that examination is conducted, however, the AMC/RO must associate with the physical or paperless claims file any electronic records reviewed. Accordingly, the case is REMANDED for the following action: 1. Associate with the physical or paperless claims file any and all electronic records reviewed. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any right foot disability. All necessary tests should be conducted. Access to the claims file, to include the Virtual VA, must be provided to the examiner for review. The examiner should first identify any current right foot disability. Then, for each identified right foot disability, the examiner must opine whether it is as least as likely as not (50 percent probability or more) that such disability is related to service. A complete, well reasoned rationale must accompany any opinion provided, and the examiner should identify the evidence that supports any opinion offered. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. 3. The AMC/RO must notify the Veteran that it is his responsibility to report for the scheduled 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). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The AMC/RO must ensure that the examination report is in complete compliance with the directives of this remand. The AMC/RO must ensure that the examiner has documented their consideration of any electronic records that are part of the claims file. If the examination report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ DEREK R. BROWN 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).