Citation Nr: 1330857 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-01 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from July 1980 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, that, in pertinent part, denied the above claim. In December 2008, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in September 2009 and March 2011 wherein it was remanded for additional development. Thereafter, in January 2012, the Board denied the Veteran's claim. The Veteran appealed the January 2012 Board decision to the United States Court of Appeals for Veterans Claims (Court), and in a March 2013 Order, the Court granted a Joint Motion for Remand dated in February 2013 vacating the Board's January 2012 decision and remanding the issue back to the Board for additional development consistent with the instructions of the Joint Motion. The case is now returned to the Board. The Board notes that in April 2012, it had remanded the issue of service connection for a psychiatric disorder for additional development. During the pendency of the appeal, by rating action dated in February 2013, service connection for major depressive disorder, with psychotic features, was granted. As this represents a complete grant of the benefit sought on appeal, the issue is no longer before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they 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 appellant if further action is required. REMAND According to the February 2013 Joint Motion for Remand, the parties have determined that in its January 2012 decision, the Board relied on an April 2011 VA examination report that was inadequate. Specifically, while the VA examiner opined that the asserted right foot disability was not etiologically related to service and the service-connected bilateral knee disability, the VA examiner did not provide an opinion as to whether the Veteran's asserted right foot disability was aggravated by the service-connected bilateral knee disability. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2013); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). As the required opinion has not been provided, the Veteran should be provided with a new medical examination to address whether he has any current right foot disability that is aggravated by a service-connected disability, to specifically include the bilateral knee disability. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his right foot disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with his claims file for treatment of his asserted right foot disability. All records obtained must be associated with his claims file. 2. The RO/AMC shall arrange for the Veteran to undergo an appropriate VA examination so as to ascertain the nature and etiology of his asserted right foot disability. The entire claims file, to include a copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examiner shall annotate his report to reflect review of the claims file was undertaken. A discussion of the Veteran's documented medical history and assertions must be included. All tests or studies deemed necessary by the examiner shall be accomplished, and all clinical findings reported in detail. The examiner is directed to address all of the following questions as definitively as possible: (a) Is it at least as likely as not that the Veteran's current right foot disability had its onset in service, or is otherwise the result of a disease or injury in service? (b) Is it at least as likely as not that the Veteran's current right foot disability was caused (in whole or in part) by a service-connected disability, to include the service-connected bilateral knee disability? (c) Is it at least as likely as not that the Veteran's current right foot disability is aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by a service-connected disability, to include the service-connected bilateral knee disability? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a right foot disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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) (2013).