Citation Nr: 1332492 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-30 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral foot disorder, to include as residuals of cold injury. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1978 to October 1985. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2008 rating decision from the Department of Veterans Affairs Regional Office located in Atlanta, Georgia, which denied the benefit sought 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 Unfortunately, a remand is needed prior to the adjudication of the Veteran's claim for service connection for a bilateral foot disorder, to include as residual of cold weather injury. The Veteran asserts entitlement to service connection for bilateral foot disorder. He claims that his current bilateral foot problems are related to cold weather injuries he incurred in service. He reports that while he was stationed in Germany in 1984, he suffered cold injury to both of his feet. Reportedly, he and his company were caught out in a snow blizzard and they were made to endure extreme cold conditions for two days. He reports that his immediate symptoms following the injury included stinging, swelling, burning, redness as well as dark and pale discoloration on his feet. He further reports that over the years, he has developed sensitive feet and he feels like he is stepping on "pins and needles." The Veteran's August 1977 examination for enlistment shows that he was assessed with moderate pes planus, bilaterally, although he did not complain of foot troubles on his associated report of medical history. An April 1980 service treatment records show that he did complain of toe pain on both of his feet, which he described as "pins sticking in toes." At that time, the examining physician felt that it was possibly due to cold weather injury and the Veteran was assessed with skin irritation on the toes. A July 1982 service treatment record shows that the Veteran presented for complaints of possible fracture to his right foot after he sustained an injury while playing basketball. X-ray film of the foot and ankle were normal and the Veteran was assessed with a soft tissue injury. There are no other complaints of foot problems during the Veteran's period of service. The Veteran's examination prior to his separation has not been associated with his service treatment records and no attempt has been made to obtain the Veteran's service personnel records. The Board notes that a copy of the Veteran's separation examination may be located with his service personnel records. On remand, additional efforts should be undertaken to attempt to obtain any personnel records and/or additional service treatment records. The Veteran was afforded an examination for his claim for service connection for bilateral foot disorder in July 2009. Following a review of the claims folder and evaluation of the Veteran, the VA examiner indicated that it would be speculative to determine whether the Veteran's current diagnosed bilateral plantar fasciitis is related to his period of service. The VA examiner provided no rational statement for why he was unable to provide a more definitive medical conclusion. The Board finds that this opinion is insufficient. In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that an examiner's conclusion that an opinion would be speculative cannot be relied upon unless the examiner has explained the basis for such an opinion or the basis is otherwise apparent from the evidence of record. In this case, the Board finds that the VA examiner did not adequately explain the basis for his opinion that he could not offer an opinion without resort to speculation. While there is only one service treatment record pertaining to possible cold weather injury in April 1980, the examiner did not take into account the Veteran's contentions that he had developed frostbite while he was station in German in 1984 and he has continued to experience symptoms since then. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Moreover, the examiner did not discuss the finding of bilateral moderate pes planus on the Veteran's 1977 enlistment examination. Consequently, the Board finds that another VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that when VA undertakes to provide a VA examination, it must ensure that the examination is adequate). A remand would also afford original consideration of additional evidence submitted by the Veteran in 2011. See 38 C.F.R. §§ 19.31, 20.1304. Accordingly, the case is REMANDED for the following action: 1. Request the Veteran's service personnel records and separation examination from the National Personnel Records Center (NPRC) and other appropriate records depositories. If the AOJ determines that further attempts to obtain such records would be futile, the file should be so annotated, and the Veteran so notified. 2. Seek the Veteran's assistance in obtaining any outstanding records of pertinent private treatment records. 3. Obtain the Veteran's VA treatment records since 2008 and associate them with the claims folder. 4. Schedule the Veteran for an examination to ascertain the nature and etiology of his bilateral foot disorder. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should elicit from the Veteran the exact nature of his bilateral foot disorder, to include the circumstances related to the onset of symptoms. The examiner should then answer the following: (a) Identify the nature of all of the Veteran's bilateral foot disorders. Identify whether Veteran has a current diagnosis of bilateral pes planus. (b) Provide a medical opinion on whether it is at least as likely as not (a 50 percent probability or greater) that any identified bilateral foot disorder, other than pes planus, is related to service, to include the possible cold weather injury in April 1980 as well as Veteran's assertions that he was exposed to cold weather injury in 1984. (c) If the Veteran does have a current diagnosis of bilateral pes planus, then provide a medical opinion on whether there is clear and unmistakable evidence that such a pre-existing bilateral pes planus was not aggravated by service (i.e., did not undergo an increase in severity, beyond natural progression). In answering the above questions, the examiner should be aware that the regulation defines "clear and unmistakable evidence" as obvious or manifest evidence. 38 C.F.R. § 3.304(b). "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. In rendering the requested opinion, the examiner must specifically acknowledge and discuss the Veteran's competent and credible lay evidence with regard to the onset of disabilities. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The report must be typed. 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 for service connection must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. 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 appellant 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). 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). _________________________________________________ MICHAEL LANE 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).