Citation Nr: 1332296 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-14 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a cyst on the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1964 to July 1967. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013). VA must provide a VA medical examination or medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Veteran has not been afforded a VA examination. The Veteran contends that he has a cyst on the right foot that is due to wearing combat boots in service. A VA treatment report dated in June 2008 shows that the Veteran has a nodule present at the dorsal side of the right foot. The Veteran reported that the growth was surgically removed in the 1960s but came back. A post-service private operative report confirms that the Veteran had an excision of calcified scar tissue and a neruo-fibrous mass on the dorsal aspect of the right foot in November 1968, and a March 1969 treatment report and lay evidence indicates that the Veteran had prior surgery in the same area around October 1968. Because evidence of record reflects surgery for calcified scar tissue and a neruo-fibrous mass on the dorsal aspect of the right foot just over a year after service separation with current recurrence, the Board finds that a VA examination is needed to ascertain the nature of the claimed right foot cyst and to assist in determining if it is related to the event of wearing of combat boots in service. Additionally, service treatment records show that pes planus was "noted" at service entrance in July 1964, so preexisted service, and the evidence must show aggravation by (worsening during) service to warrant service connection. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). The Veteran was treated for flat feet with Achilles tendonitis on one occasion in February 1965, and was provided with padding to prevent irritation. No further complaints were noted in service or at service separation. Because pes planus was "noted" at service entrance, the Board finds that an opinion would assist in determining if the claimed right foot cyst is related to pes planus such that it represents an increase in the severity of pes planus in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For these reasons, the Board finds that a remand for a VA examination is necessary to assist in determining if the claimed right foot cyst is related to the wearing of combat boots in service, or if it is alternately, consistent with aggravation of pes planus in service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a VA podiatry examination to assist in determining if a claimed right foot cyst is etiologically related to service. The relevant documents in the claims folder should be made available for review in connection with this request. The VA examiner should identify any current diagnosis related to the claimed right foot cyst and should offer the following opinions: a. Is it at least as likely as not (a 50 percent or greater probability) that the claimed right foot cyst or growth manifested in service or is otherwise related to the wearing of boots in service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. b. Is it at least as likely as not (a 50 percent or greater probability) that the claimed right foot cyst or growth is related to preexisting pes planus, such that it represents aggravation (an increase in severity) of pes planus in service? The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. In rendering the opinion, the examiner should address relevant findings of record including, specifically, service treatment records which reflect a diagnosis of pes planus at service entrance and treatment for Achilles tendonitis on one occasion in service, and a November 1968 private operative report showing that the Veteran had excision of calcified scar tissue and a neruo-fibrous mass on the dorsal aspect of the right foot post-service. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. Citation to medical authority/treatise would be helpful. 2. The RO/AMC should review the VA opinions and VA examination reports to ensure that they are in compliance with this remand. If it is deficient in any manner, the RO/AMC should implement corrective procedures at once. 3. After all development has been completed, the RO/AMC should readjudicate the issue of service connection for a right foot cyst. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2013). 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. PARKER 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).