Citation Nr: 1333791 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 12-02 491A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for bilateral foot disability. 2. Entitlement to service connection for bilateral ankle disability. ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant had a period of active duty for training from September 1992 to March 1993, with subsequent reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in October 2010, a statement of the case was issued in December 2011, and a substantive appeal was received in February 2012. The appellant, in a June 2013 letter, has raised a claim of entitlement to service connection for an acquired psychiatric disability, which the RO as the Agency of Original Jurisdiction (AOJ) has not yet adjudicated in the first instance. Therefore, the Board does not have jurisdiction over it, and the matter must be referred to the RO for appropriate action. 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 VA must ensure that examinations provided in conjunction with a claim for benefits are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that VA must ensure the adequacy of any examination or medical opinion it provides). Here, the appellant was afforded a QTC examination in August 2009. The examiner at the time considered the appellant's detailed personal medical history, ultimately finding it impossible to provide a diagnosis "because the exam findings can possibl[y] be normal variant or possibly a symptom secondary to a disease not mentioned in this exam." The claims file was not made available to the examiner, and she indicated that the lack of medical records from evaluation or treatment contributed to the ambiguity of her final opinion. Under these circumstances, the Board must view the August 2009 examination as inadequate. Furthermore, the appellant's February 2012 substantive appeal indicates that pertinent VA treatment records may remain outstanding. She notes that during reserve duty, between 1993 and 2001, she received treatment from VA doctors for her claimed disability, and explicitly alleges that these records were not considered by the RO. The appellant also claims being on medical profiles during that time. Accordingly, as it appears that the appellant may have received subsequent VA treatment that is pertinent to her claim, the relevant records should be obtained on remand. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that where VA medical treatment records are material to the issue on appeal and not associated with the claims file, a remand is necessary to acquire them because VA has constructive knowledge of their existence). As the appellant claims that she was issued medical profiles during reserve service, pertinent reserve medical records should be obtained upon remand as well. Finally, the appellant's February 2012 substantive appeal also indicated that certain additional treatment records between May 2004 and the present were not considered. It is unclear whether she is referring to private or VA treatment records. Though the appellant is ultimately responsible for obtaining non-Federal evidence that may be used to support his appeal, as additional development is already required, the Board finds that additional efforts to obtain any missing private records should be made on remand. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (explaining that the VCAA duty to assist is not a one-way street). Accordingly, the case is REMANDED for the following actions: 1. The RO should take appropriate actions to obtain all of the appellant's pertinent reserve medical records, to include any medical profiles of record, between March 1993 and January 2001. 2. The RO should also obtain copies of any (and all) pertinent outstanding VA treatment records of the appellant related to a foot or ankle disability from any VAMCs identified by the appellant. If such records cannot be obtained after reasonable efforts have been exhausted, the RO should issue a formal determination that they do not exist or that further efforts to obtain them would be futile and document that finding in the claims file. 3. The RO should contact the appellant and inquire as to any outstanding pertinent private medical records. If such exist, the RO should obtain the necessary authorization from the appellant and request copies of relevant private treatment records. Two attempts should be made to obtain these treatment records, unless a formal finding can be made that a second request would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). 4. If any records requested above are unavailable, clearly document and notify the appellant of any inability to obtain these records pursuant to 38 C.F.R. § 3.159(e). She should also be notified to submit any pertinent VA or private records in her own possession. 5. After completion of the above to the extent possible, the appellant should be scheduled for an appropriate VA examination to determine the nature, extent and etiology of any current foot or ankle disabilities. The entire claims file must be made available to the examiner for review in connection with the examination. The examiner should diagnose any current foot and ankle disabilities. The examiner should clearly address the nature and etiology of each diagnosed disability. In doing so, the examiner should determine whether it is at least as likely as not (50 percent or higher degree of probability) that any currently diagnosed foot or ankle disability was incurred in or aggravated by the appellant's service. The examiner should offer detailed reasons for all opinions. 6. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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). 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). _________________________________________________ ALAN S. PEEVY 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).