Citation Nr: 1333129 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-24 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Michael A. Leonard, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran had active service from October 1969 to October 1970. This appeal to the Board of Veterans Appeals (Board) arises from a February 2005 rating action that denied service connection for a bilateral foot disability. In February 2006, the appellant testified at a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. By decisions of May 2007 and October 2008, the Board remanded this case to the RO for further development of the evidence and for due process development. By decision of March 2010, the Board denied service connection for a bilateral foot disability. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). By December 2010 Order, the Court vacated the Board's March 2010 decision, and remanded the matter to the Board for compliance with instructions contained in a November 2010 Joint Motion for Remand of the appellant and the VA Secretary. The case was again remanded for further development in March 2011. The Veteran's representative has objected that some of the requested development was not accomplished and, in order to afford the Veteran every consideration, the case must again be remanded to the RO. VA will notify the appellant if further action is required. REMAND In the March 2011 remand, the Board ordered certain actions to be undertaken. The RO was to contact the National Personnel Records Center (NPRC) and either the Veteran's complete Service Treatment Records (STRs), or provide notification that further efforts to attempt to obtain them would be futile. While additional STRs were received from NPRC, the Veteran's examination for separation from service and records of surgical treatment claimed by the Veteran as having occurred were not among them. The NPRC did not make a formal finding that further efforts would be futile. This should be accomplished. The Veteran's representative has also argued that VA has failed in the duty to assist in obtaining an opinion from one of the VA physicians who had previously treated the Veteran. It is noted that the Board ordered that the RO should contact the Veteran through his attorney and request him to obtain and submit the referenced medical opinion. In correspondence received in November 2012, the Veteran's representative stated that this physician had submitted a July 2011 letter that contained some inaccuracies and that, while a corrected letter was promised, it has not been forthcoming. The representative has requested that VA obtain this opinion. It is noted that the July 2011 letter has not been associated with the claims folder. Finally, the Veteran's representative has argued that the March 2011 remand ordered the RO to conduct an orthopedic examination. This was interpreted by the representative as an examination by an orthopedist. The November 2012 VA examination that was conducted was performed by an internist. While the Board believes that this physician was competent to perform the examination, the representative's contentions must be addressed. As such, the case must, once again, be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the NPRC and obtain the Veteran's complete service medical records, to include any report of examination at separation from service. If no records are found to be available, the RO should request notification that further efforts to obtain these records would be futile and formally inform the Veteran and his representative. Any records/responses received should be associated with the claims folder. 2. The RO should contact the Veteran, through his attorney, and request him to obtain and submit the July 2011 response from the VA physician noted in his November 2011 letter. The RO should attempt to contact this physician and, if possible request any medical opinion linking the Veteran's bilateral foot disorder to his military service. 3. If any records sought are not obtained, the RO should notify the Veteran and his attorney of the records that were not obtained, explain the efforts taken to obtain them, and describe any further action to be taken. 4. The RO should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his bilateral foot disorders. If available, the examination should be conducted by a VA specialist in orthopedics. If such a specialist is not available to conduct the examination, the RO should so certify this to the Board. The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that a disorder of either foot is related to service. The claims folder should be made available for review in connection with this examination. The examiner should provide complete rationale for all conclusions reached. 5. Thereafter, the RO/AMC should readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits. The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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 devel2opment or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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).