Citation Nr: 1340359 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 11-09 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for bilateral foot disability, to include folliculitis of the right foot. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from April 1972 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In October 2012, the Veteran appointed Veterans of Foreign Wars of the United States (VFW) as his representative. However, when the Veteran's case was certified to the Board, he was represented by Oklahoma Department of Veteran's Affairs. VFW stated that absent compelling circumstances, VFW policy prohibits them from accepting representation after the VA Form 9 is filed. The Board sent the Veteran, an August 2013 letter, in which it informed him that his appeal was pending at the Board and explained his options for representation. No response was received, and thus, the Board finds that the Veteran is self-represented for this appeal. Additionally, after this case was transferred to the Board, the Veteran filed additional claims and the RO obtained additional evidence for these claims. However, in a November 2013 statement, the Veteran waived the right to initial consideration of this additional evidence by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the Veteran). Thus, the Board may proceed with appellate review. The issues of entitlement to service connection for posttraumatic stress disorder, disability of the left knee, and a claim to reopen nonservice connected pension appear to be raised by a review of Veterans Benefits Management System (VBMS) electronic claims processing system. The record before the Board does not reflect that these claims have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. Finally, there is evidence in the record to raise an informal claim of entitlement to TDIU due to service-connected disability. Specifically, a July 2013 VA examination indicated that the Veteran is unemployed due to medical conditions, described in the examination, that prevent him from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a) (2013). The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability then at issue before the Board, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996). However, if the Veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities, which were not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit. Id. In this case, an appeal has been completed only as to the issue of entitlement to service connection for bilateral foot disability, thus the Board lacks jurisdiction over the TDIU claim and it is referred to the agency of original jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2012) The Veteran maintains service connection is warranted for his bilateral foot condition. He stated that during active service he developed blisters on the tops of his feet and had to wear thick cotton socks or bandages. He further stated that he still has scars on his feet and he still develops blisters on his feet when he wears certain boots. The April 2011 VA examiner did not note any current evidence of blisters, pustules, infection, folliculitis and or any rash of any kind involving either foot. The April 2011 VA examiner opined that the Veteran has resolved folliculitis of the right foot. The April 2011 VA examiner noted that folliculitis is a superficial bacterial infection that typically resolves on its own or with warm saline compresses and if needed topical antibiotic ointment. However, a May 2011 VA internal medicine note stated that the Veteran's skin was very dry and scaly and noted scarring on his feet. Additionally, the May 2011 internal medicine note also described abnormalities of the Veteran's feet which included dry scaly skin, callouses between toes, and mycosis of great toes. Thus, the Board concludes that the April 2011 VA examination is not adequate for the purpose of adjudicating the Veteran's claim pertaining to bilateral foot disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). Therefore, on remand, the Veteran should be afforded another VA examination to identify, and opine as to the etiology of, current bilateral foot disability, to include folliculitis of the right foot. A medical nexus opinion should also be provided to determine if any diagnosed bilateral foot condition, to include folliculitis of the right foot, and the feet abnormalities indicated in the May 2011 internal medicine note, are related to service. In an October 2012 mental health note, the Veteran stated he has been denied disability benefits from the Social Security Administration (SSA). The basis of the Veteran's SSA claim is unclear. However, there are no SSA records associated with the claims file, and there is no indication that VA has attempted to obtain any such records. While SSA records are not controlling for VA determinations, when VA is put on notice of the existence of SSA records, and such records may be pertinent to a VA claim, VA must seek to obtain those records before proceeding with the appeal. Thus, the relevant SSA records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(2) (2013). All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. Additionally, updated VA treatment records should be obtained and associated with the record. The Veteran has received treatment from the Jack C. Montgomery VA Medical Center (VAMC) in Muskogee, Oklahoma. Thus, on remand all relevant VA treatment records should be obtained, specifically, from the Jack C. Montgomery VAMC and any associated outpatient clinics, since October 2012, and associated with the claims file. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(2). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record, all records pertaining to the Veteran concerning a claim for disability benefits from the Social Security Administration, to include all evidence and a copy of all disability determinations. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 2. Obtain the Veteran's VA treatment records, from the Jack C. Montgomery VAMC and any associated outpatient clinics, since October 2012, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran must be notified of any inability to obtain the requested documents. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of all bilateral foot conditions, to include folliculitis of the right foot, that may be present or was present during or proximate to the claim. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete record, to include a copy of this Remand, the claims folder and electronic VA records, must be made available to and reviewed by the examiner in conjunction with the examination. For any bilateral foot condition, to include folliculitis of the right foot, that is diagnosed (including the feet abnormalities indicated in the May 2011 VA internal medicine note), opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that that the bilateral foot condition was present in service, was caused by service, or is otherwise related to service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 4. The Veteran must be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 5. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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. 2013). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).