Citation Nr: 1337057 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-14 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from January 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Providence, Rhode Island. Jurisdiction of this matter is currently with the RO located in St. Petersburg, Florida. In December 2009, the Veteran testified at a personal hearing over which the undersigned Veterans Law Judge presided while at the RO. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in March 2010 and January 2011 at which time it was remanded for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue 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 After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. Initially, in August 2011, the Board received additional evidence from the Veteran, to specifically include private medical treatment records from C. J. Paul, M.D., dated from June 2011 to August 2011. This evidence was submitted without a waiver of consideration by the agency of original jurisdiction. In these circumstances, the law requires that the Board return the appeal to the agency of original jurisdiction for initial consideration of the new evidence. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the agency of original jurisdiction); 38 C.F.R. §§ 19.37, 20.1304 (2013). Since this evidence is neither duplicative of other evidence already of record nor irrelevant, it must be referred back to the agency of original jurisdiction for initial consideration. Additionally, as noted in the Board's January 2011 Remand, the Veteran's service treatment records are negative for any complaints of or treatment for a bilateral foot disability. However, less than two years after separation from service, the Veteran submitted a claim of entitlement to service connection for a bilateral foot disability. He has consistently maintained that his feet caused him a great deal of pain while in service. During his December 2009 hearing, he described that his feet began to hurt toward the end of his time in basic training, and that upon finishing basic training, he was permitted to return home on leave at which time his father took him to a medical facility to have his feet examined. He added that he had been diagnosed with a severe strain or sprain, but that X-rays of the feet were negative. To further support his claim, the Veteran submitted a statement from his mother in June 2007 in which she stated that she remembered her husband taking her son to have his feet examined when he was home on leave after basic training. A Certificate of Attending Physician (FL 21-104) from F. Mushnick, D.S.P., dated in May 1970, shows that the Veteran was diagnosed with plantar warts on the left foot and heel. A private medical record from F.D.M., M.D., dated in December 2009, shows that the Veteran had a bilateral foot condition (metatargis adductus) and pes planus which were most likely caused by or a result of wearing boots 10 to 12 hours per day for three years while in service. A VA examination report dated in September 2010 shows that the Veteran was diagnosed with mild degenerative disease of both feet. The examiner concluded that it was less likely as not that the current bilateral foot disability was the result of active service. The examiner explained that he could find no compelling evidence that would convince him to change or reverse the May 2006 decision in favor of the Veteran. In the January 2011 Remand, the Board requested that agency of original jurisdiction obtain a VA foot examination addendum to supplement the September 2010 VA examination report in order to determine the nature and etiology of the currently diagnosed bilateral foot disability. Specifically, the VA examiner was instructed to address the lay statements in support of the Veteran's claims, as well as, the December 2009 medical opinion of F.D.M., M.D. in determining the nature and etiology of the bilateral foot disability. In an addendum dated in February 2011, the same VA examiner that conducted the September 2010 examination concluded that after reviewing the Veteran's claims file, with special emphasis on the documentation of Dr. Murray (12/09) who only mentions the history of foot disability, there was no new material evidence of a foot problem in this encounter. The examiner also indicated that he found no documentation of any foot problems in his service medical records, only his verbal history of post service concerning his feet. The examiner reiterated that this was without any new material proof of a service foot condition. The examiner also indicated that the Veteran worked as a truck driver post service, which included lifting objects, climbing, walking, and standing long periods of time. This post service job certainly had an impact on his feet, but in his judgment the foot condition was not related to service. The Board finds that the February 2011 addendum opinion to be inadequate. In this regard, the VA examiner based his conclusion on the fact that he found no documentation of any foot problems in the service medical records, and that there had only been his post-service verbal history concerning his feet. The Board finds that the VA examiner did not consider that the Veteran is competent to report his symptoms and history. Additionally, the VA examiner did not consider the lay statement from the Veteran's mother which indicated that he had been treated for a foot problem during service. In Dalton v. Nicholson, 21 Vet. App. 23 (2007), the United States Court of Appeals for Veterans Claims (Court) found that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service symptoms and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion. The Board also notes that in concluding the Veteran's current symptoms were the result of post-service employment as a truck driver, the VA examiner failed to consider the fact that the Veteran initially filed a claim for service connection for a foot disability in April 1970 (asserting chronic foot disability) and that in May 1970, Dr. Mushnick provided a diagnosis of plantar warts on the left foot and heel. As such, a new examination is required. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (inadequate medical evaluation frustrates judicial review). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his bilateral foot disability should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall ask the Veteran to identify all locations of VA treatment or evaluation for his bilateral foot disability and contact each VA medical facility identified by the Veteran to obtain ongoing medical treatment records pertaining thereto. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall afford the Veteran a VA new examination by a VA physician that has not previously examined the Veteran in order to determine the current nature and etiology of his asserted bilateral foot disability. 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. All tests deemed necessary shall be conducted and the results reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran has a current bilateral foot disability, and if so, whether it is at least as likely as not that such is related to his period of active service. In doing so, the examiner must specifically address the May 1970 medical record from Dr. Mushnick and the December 2009 letter from F.D.M., MD. The VA examiner must also specifically address the Veteran's lay testimony and the June 2007 statement of his mother in support of his claim. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. Medical reasons for rejecting any part of the Veteran's history should be set forth in detail. The examiner is also advised that the absence of evidence of treatment for a bilateral foot disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC shall then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case that specifically addresses all additional evidence submitted since the August 2011 Supplemental Statement of the Case concerning this claim, to include the private medical treatment records from C. J. Paul, M.D., dated from June 2011 to August 2011. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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 purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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.A. MARKEY 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).