Citation Nr: 1332016 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 08-39 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a right foot disability, to include as secondary to service-connected degenerative joint disease of the thoracic and lumbar spine with radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Laura A. Walker, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from April 1968 to September 1969. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO), which reopened the Veteran's claim for entitlement to service connection for right pes cavus but denied the claim on a de novo basis. In May 2012, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for a right foot disability, and remanded the reopened claim for additional development. In September 2012, the Board denied both the issue on appeal and the issue of entitlement to a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a right foot disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which, in a July 2013 Order, vacated and remanded the issue on appeal back to the Board, pursuant to a Joint Motion for Remand, because the Board's reasons and bases were considered inadequate. The Board's denial of a temporary total rating under the provisions of 38 C.F.R. § 4.30 for a right foot disability was dismissed by the Court Order. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND According to the Joint Motion, the Board erred in denying the issue on appeal in September 2012 based on an April 2012 VA examination report because the report failed to provide an adequate rationale as to why the Veteran's foot condition was not aggravated by his service-connected back condition, as the examiner's finding that a foot deformity existed prior to the Veteran's back condition did not rule out the possibility that the back condition aggravated the foot condition. The examiner also failed to provide any rationale for the conclusion that the Veteran's right foot condition was not caused or aggravated by his military service. According to the Joint Motion, this case needed to be returned to the Board in order to provide the Veteran with a medical examination that addressed these questions. Accordingly, the case is REMANDED for the following actions: 1. The RO will ask the Veteran to provide the names and addresses, as well as the dates of treatment, of all health care providers, both VA and non-VA, who have seen or treated him for right foot disability since April 2012, the date of the most recent VA evaluation. After securing any necessary authorization, the RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2013). 2. The RO will send the claims files to the VA examiner who evaluated the Veteran for right foot disability in April 2012 and ask her to again review the evidence of record and provide an additional opinion, with a clear rationale based on the evidence of record, on whether the Veteran's current right foot disability is at least as likely as not (50 percent probability or more) caused or aggravated by his active military service. If the opinion on direct service connection is negative, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right foot disability is caused or aggravated by his service-connected DJD of the thoracic and lumbar spine with radiculopathy of the right lower extremity. If the reviewer who provided the opinion in April 2012 is not available, the RO will obtain an opinion from another appropriate medical professional. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. §§ 3.158 and 3.655 (2013). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file, including a copy of this remand, must be made available to the reviewer/examiner in conjunction with the examination. The rationale for all opinions expressed must be explained. The reviewer/examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to finds in favor of service incurrence or causation as to find against such matters. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The reviewer/examiner is further advised that aggravation for legal purposes is defined as a permanent worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. 3. After the above have been completed, the RO will re-adjudicate the Veteran's claim for service connection for a right foot disability, to include as secondary to service-connected degenerative joint disease of the thoracic and lumbar spine with radiculopathy of the right lower extremity, based on all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. 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). The purpose of this REMAND is to comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).