Citation Nr: 1337475 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-24 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to an increased (compensable) rating for bilateral pes planus with a history of plantar fasciitis. 3. Entitlement to an increased (compensable) rating for bilateral hallux valgus with exostosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran had active service from February 1999 to January 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2012, the Veteran testified at a hearing at the RO, before the undersigned Veterans Law Judge (VLJ) of the Board (Travel Board hearing). A transcript of that hearing has been associated with the claims file. 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 The Veteran essentially claims that he developed diabetes mellitus due to anthrax injections during his four-year period of active service. The Veteran indicated that service examiners provided these injections prior to and after his deployment to Kuwait in 1999. The only service personnel record on file, specifically the Veteran's Form DD-214, states that the Veteran did not have any foreign service. Moreover, the service treatment records contain no notation indicating that the Veteran received an anthrax injection. Yet, VA has not made attempted to verify the Veteran's reported foreign service. Therefore, VA should seek to verify the Veteran's foreign service, to include by procuring his service personnel records and contacting the appropriate military departments. The Veteran has indicated that he served additional Reserves service after his January 2003 discharge from service. The record indicates that the Veteran was diagnosed with diabetes mellitus in July 2006. In an October 2008 statement, the Veteran wrote that his diabetes disorder "developed less than one year after I got out of the Reserves." As such records might be pertinent to the Veteran's claim for service connection for diabetes mellitus, the Veteran's complete service treatment records, to include Reserves records, should be associated with the claims file. The Veteran also contends that his service-connected bilateral pes planus and hallux valgus disabilities have worsened since the provision of the most recent VA medical examination in February 2009. Therefore, an additional VA medical examination to determine the current severity of the Veteran's service-connected bilateral pes planus and hallux valgus disabilities should be provided. At the April 2012 Travel Board hearing, the Veteran indicated that a podiatrist had prescribed medications for his service-connected bilateral pes planus and hallux valgus disabilities within the previous six months. The claims file does not contain records indicating specific treatment for the Veteran's foot disabilities. Therefore, any outstanding treatment records should be procured. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran to determine the unit and approximate dates for his Reserves duty. 2. Obtain and associate with the claims file any outstanding service personnel and treatment records, and confirm the Veteran's foreign service by contacting the VA Records Management Center (RMC) or any appropriate service department. In attempting to procure the service treatment and personnel records, follow VA regulations regarding the procurement of outstanding federal records. 3. Obtain and associate with the claims file all outstanding records of VA and private treatment for the claimed disorders, to include any records indicating specific treatment for the Veteran's service-connected foot disabilities. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. Insure that the Veteran is provided with the necessary authorization and release forms to procure any outstanding private treatment records. 4. Schedule the Veteran for a VA examination to determine the etiology of his claimed diabetes mellitus. The relevant evidence from the claims folder should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. In reviewing the claims file, the VA examiner should note the medical treatise evidence regarding relationships between anthrax vaccinations and diabetes mellitus. After an interview of the Veteran and all tests and studies required, the VA examiner should offer the following opinion: Is it at least as likely as not that the Veteran's diabetes mellitus disorder had its onset during service or is otherwise related to service or an incident of service, to include any anthrax vaccinations provided during service? In providing this opinion, the VA examiner should specifically note the treatise evidence submitted by the Veteran, and the examiner's reasons for agreeing or disagreeing with the findings therein. The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A rationale must be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should in such case explain why it would be speculative to respond. 5. Provide the Veteran with a VA examination to determine the severity of his service-connected bilateral pes planus and hallux valgus disabilities. Sufficient evaluations should be scheduled to evaluate the Veteran's symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should identify the limitation of activity, to include limitations related to pain, imposed by the Veteran's service-connected bilateral pes planus and hallux valgus disabilities with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. 6. After completion of the foregoing and all other necessary development, re-adjudicate the claims for service connection for diabetes mellitus, and increased ratings for service-connected bilateral pes planus and hallux valgus. In reviewing the claims for increased ratings, consider the usage of DeLuca and extraschedular rating criteria, in light of the evidence. If any benefits sought remain denied, the Veteran should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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). These claims 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). _________________________________________________ JOHN Z. JONES 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).