Citation Nr: 1343250 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 12-08 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hemorrhoids. 2. Entitlement to service connection for bilateral foot disability, to include pes planus and pes cavus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 2001 to June 2006, including service in Iraq. The Veteran has been awarded the Combat Action Badge. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2011 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska,. In his March 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, the Veteran withdrew his request for a hearing in April 2013. See 38 C.F.R. § 20.704(d) (2013). Subsequent to the issuance of the January 2012 statement of the case (SOC), in April 2013, the Veteran submitted additional evidence in support of his claims, accompanied by a waiver of initial RO review. See 38 C.F.R. § 20.1304 (2013). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents reveals VA treatment records dated through November 2011, which were considered by the RO in the January 2012 SOC. For reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran when further action, on his part, 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 claims so that he is afforded every possible consideration. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.326(a) (2013). VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). With regard to the Veteran's claim for service connection for hemorrhoids, the Board finds that a VA examination is necessary in order to determine the nature and etiology of any current hemorrhoid condition. Although the Veteran's service treatment records are negative for complaints, treatments or diagnoses related to hemorrhoids, lay statements from individuals who had served with the Veteran indicate that he had complained of pain and swelling related to hemorrhoids during service. A letter from D. S. indicates that he had noticed that the Veteran received Preparation H in his care packages, which had been sent from home, during their combat deployment. In addition, a letter from R. R. indicates that he and the Veteran had discussed his hemorrhoid symptoms during service. The Board notes that while the Veteran continues to report the presence of hemorrhoids, such is not reflected in the treatment records contained in the record. Under these circumstances-to include the noted lay statements and the Veteran's history of combat service-a VA examination to obtain medical findings and opinion as to the current nature and etiology of the Veteran's claimed hemorrhoids is warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006).. As regards the claim for service connection for bilateral foot disability, the Board first notes that the Veteran's March 2001 service entrance examiner noted moderate asymptomatic pes cavus. As a pes cavus defect was noted upon entrance, the Veteran is not presumed to have been in sound condition with respect to this disability. See 38 U.S.C.A. § 1111 (West 2002). Nevertheless, service connection may be awarded for a preexisting disability that was aggravated in service. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). In April 2013, the Veteran submitted lay statements from individuals who he had served with during service. Both such individuals recalled the Veteran complaining of foot pain during service, including during his combat deployment. The Board notes that the Veteran continues to report the presence of a foot disorder (although such is not reflected in the treatment records contained in the record). Under these circumstances-to include the noted lay statements and the Veteran's history of combat service-a VA examination to obtain medical findings and opinion as to the current nature and etiology of the Veteran's claimed bilateral foot disability-to include whether a current foot disability is the result of in-service-aggravation of pre-existing pes cavus by superimposed injury or disease-is needed to resolve this claim. Id; see also VAOPGCPREC 82-90, 55, Fed. Reg. 45,711 (1990) and Carpenter v. Brown, 8 Vet. App. 240, 245 (1995) (providing that service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality (defect) by superimposed disease or injury.). Prior to arranging for the Veteran to undergo examination, to ensure that all due process requirements are met, and that the record is complete, updated VA treatment records should be obtained, as VA treatment records dated only through November 2011 have been associated with the claims file Accordingly, these matters are hereby REMANDED for the following action: 1. The Veteran's updated VA treatment records documenting treatment for his claimed hemorrhoids and bilateral foot disorder should be obtained. Such records dated through November 2011 from the VA Medical Center in Omaha have been associated the Veteran's claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. Following the completion of the above development, and the receipt of any outstanding records, arrange for the Veteran to under VA examination to obtain medical information as to the nature and etiology of any current hemorrhoids. The entire claims file, to include a complete copy of this REMAND and copies of any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. 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) Identify all diagnoses related to the Veteran's claimed hemorrhoids. The examiner should identify all such disorders that have been present at any time since September 2011. (b) For each diagnosed disorder, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The examiner should specifically consider the April 2013 lay statements from individuals who had served with the Veteran which state that he had complained of hemorrhoid symptoms during service. All examination findings, along with complete rationale for any conclusion reached, should be provided. 3. After associating with the claims file all records and/or response from each contacted entity, arrange for the Veteran to undergo VA examination to obtain information as to the nature and etiology of current bilateral foot disability. The entire claims file, to include a complete copy of this REMAND and copies of any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. 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) Identify all diagnoses related to the Veteran's feet, to include pes planus and/or pes cavus. The examiner should identify all such disorders that have been present at any time since September 2011. (b) With regard to any pes cavus disorder found to be present, the examiner should determine whether it is at least as likely as not (i.e., is it 50 percent or more probable) that the moderate pes cavus noted on service department examination in March 2001 underwent a permanent (as opposed to a transient or temporary) increase in severity during service, resulting in current disability; and, if so,. (c) whether it is clear and unmistakable (i.e., obvious, manifest, or undebatable) that the increase in severity was due to the natural progress of the disease. (d) With regard to any foot disorder other than pes cavus found to be present, the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that such disorder is related to the Veteran's military service. (e) If arthritis is diagnosed, did the disability manifest to a compensable degree within one year of service discharge (i.e., June 2007)? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. All examination findings, along with complete rationale for any conclusion opinion offered should be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above, and any other action deemed warranted, the Veteran's claims should be readjudicated in light of all pertinent evidence and legal authority. 6. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response, before the claims file is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2013). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).