Citation Nr: 1336004 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 09-41 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left hip disability. 2. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and A.R. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Acting Veterans Law Judge at an August 2012 Travel Board hearing, and a transcript of this hearing is of record. 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 As noted above, the Veteran is seeking entitlement to service connection for left hip disability and a bilateral plantar fasciitis, which he has testified developed secondary to the physical demands of his active military service. The Veteran was afforded a VA examination of his left hip in April 2009. At that time, the examiner attributed the Veteran's left hip disability to a "congenital abnormality." Unfortunately, this opinion is inadequate. Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Nonetheless, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01- 85 (March 5, 1985). The VA General Counsel 's opinion also notes that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand, because of 38 C.F.R. § 3.303(c), may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. VAOPGCPREC 82-90. The April 2009 VA examiner failed to identify whether the Veteran's "congenital abnormality" of the left hip is a "disease" or a "defect". Furthermore, the examiner failed to address whether the congenital disease/defect increased in severity during active service beyond the natural progress of the condition and/or was subject to a superimposed injury or disease during service. Accordingly, on remand, the Veteran should be afforded a new VA examination of his left hip disability to clarify these issues. The Veteran was also afforded a VA examination of his bilateral plantar fasciitis in April 2009. Unfortunately, the examiner did not discuss or consider the Veteran's lay testimony concerning the onset of his disability, his alleged in-service injury, and continuity of symptomotology. The Board notes that the examiner must consider lay statements regarding in-service occurrence of an injury. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). Accordingly, on remand, the Veteran should be scheduled for a new VA medical examination of his foot disability. The examiner should be sure to consider the Veteran's lay testimony that the physical demands of his service, such as frequent running, walking with a heavy backpack, and jumping out of vehicles, caused trauma to his feet. Accordingly, the case is REMANDED for the following action: 1. Associate the Veteran's VA outpatient treatment records after October 2009 with his claims folder. 2. Once this is done, the RO should schedule the Veteran for a VA examination of his left hip condition. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to: a. Diagnose all current disabilities of the left hip, whether congenital or acquired. b. Identify those hip conditions, if any, that are congenital in nature. c. For any condition of the left hip that is not congenital, the examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the disability had onset in service or was caused or permanently aggravated by the Veteran's active military service. d. For any condition of the left hip that is congenital, the examiner is asked to opine whether the condition is a disease or a defect. For VA compensation purposes, the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. See VAOPGCPREC 82-90 (July 18, 1990). e. If a left hip condition is determined to be a congenital disease (not a defect), than the examiner is asked to opine if it is at least as likely as not that the condition was permanently aggravated (worsened) by the Veteran's active military service. f. If a left hip condition is determined to be a congenital defect (not a disease), the examiner is asked to opine whether it is at least as likely as not that the Veteran suffered a superimposed injury or disease to the left hip in service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any accounts of in-service injury. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 3. The RO should also schedule the Veteran for a VA examination of his bilateral plantar fasciitis. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is as least as likely as not (fifty percent or greater) that the Veteran's bilateral plantar fasciitis had onset in service or was caused or permanently aggravated by the Veteran's active military service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any accounts of in-service injury. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. Kordich Acting 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).