Citation Nr: 1339743 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-28 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1973 to April 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the Veteran's claim for service connection for plantar fasciitis. The United States Court of Appeals for Veterans Claims has held that, when determining the scope of an issue on appeal, the Board has an obligation to broadly construe the claimant's description of the claim, the symptoms he describes, and the information he provides in connection with that claim. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, as shown on the first page of this decision, the Board has recharacterized the issue on appeal as entitlement to service connection for a bilateral foot disorder. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) folder associated with the Veteran's claim. A review of such a file does not reveal any additional documents pertinent to the claim on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran contends that he sustained a bilateral foot injury during service, specifically pain on the bottoms of his feet. Service treatment records document multiple complaints of heel and foot pain. The Veteran submitted a July 2011 etiological opinion from a private physician, Dr. Berk, in support of his claim. Dr. Berk opined that the Veteran's chronic foot pain was related to the problem that started in service and was a "service-related problem." However, he provided no rationale in support of this opinion. In addition, Dr. Berk characterized the Veteran's current disability as pain, which is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). As such, this July 2011 opinion is not sufficient to support a grant of service connection. Thereafter, the Veteran was afforded a VA examination with an etiological opinion in February 2012. The examiner opined that the Veteran's bilateral foot condition was less likely as not caused by or a result of his in-service treatment for foot pain as he was not seen for such symptoms for 36 years after service and that the medical literature states that the outcomes for patients with plantar fasciitis is generally favorable. The examiner based her opinion on the absence of post-service medical documentation pertaining to the current foot disorders. However, this examiner did not account for the Veteran's statements in rendering her opinion. In addition, the examiner did not provide a rationale with regard to the Veteran's other diagnosed foot disorder, namely moderate degenerative changes of the first metatarsal phalangeal joint with narrowing and sclerosis bilaterally. As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current bilateral foot disorders is necessary. In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of his bilateral foot disorders, in addition to his statements regarding the continuity of symptomatology, and Dr. Berk's July 2011 opinion. In addition, the Board notes the Veteran's reports during his February 2012 VA examination that he would attempt to get "more private records that will show evidence that he has had [a bilateral foot disorder] over the past 36 years." However, he had also reported during this examination that he had not received post-service treatment from any medical provider for his bilateral foot condition but rather had treated the condition using over-the-counter products. It is therefore not clear whether the Veteran actually received medical treatment for his bilateral foot disorders. On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed bilateral foot disorder. Accordingly, the case is REMANDED for the following action: 1. Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to enable it to obtain any additional treatment records pertinent to the claim on appeal. Specifically request that the Veteran provide, or provide appropriate authorization so as to allow VA to obtain, any outstanding private records, including copies of any records demonstrating treatment for his claimed bilateral foot disorder since service. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the completion of the above development and the receipt of any additional records, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed bilateral foot disorders found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (a) Please identify all currently diagnosed left and/or right foot disorders that have been present at any time since July 2011. (b) For each currently diagnosed left and/or right foot disorder, is it at least as likely as not (50 percent or greater probability) that such had its onset during the Veteran's period of active duty service or is otherwise related to his military service? The examiner should comment on the Veteran's documented in-service complaints of foot or heel pain, to include those in May 1975, August 1975, September 1975, December 1975, March 1976, April 1976 and May 1976. The examiner should also consider the July 2011 opinion offered by Dr. Berk (c) If arthritis is diagnosed in either foot, did such manifest within one year of service discharge (i.e., April 1978)? If so, what were the manifestations? In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).