Citation Nr: 1415857 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 11-14 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a right foot condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1953 to January 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. In his substantive appeal, the Veteran requested a hearing before the Board. A videoconference hearing was scheduled in January 2014. The Veteran did not appear for the hearing; however, the notice for the hearing was returned as undeliverable. In March 2013, the RO notified the Veteran that his substantive appeal was untimely and "there is no appeal pending." Nevertheless, the RO then certified the appeal to the Board and scheduled the Veteran for the January 2014 videoconference hearing. VA has led the Veteran to believe that his service connection claim is on appeal. Thus, any issue of timeliness has been implicitly waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 seeks service connection for a right foot condition, which he attributes to physical training during service. Service connection is in effect for tinea versicolor and lichen chronicus simplex and that disability contemplates complaints related to athlete's foot. VA treatment records show that in October 2006, the Veteran underwent right foot arthroplasty and osteotomy. Pre-operative reports note the Veteran was evaluated for painful hammertoes and a painful tyloma for many years. Service treatment records include numerous entries pertaining to the feet, including corns, atypical callosities, plantar warts, and ingrown toenails. The Veteran has a current right foot disability and was treated for related complaints in service. He has also asserted that his foot problems began in service and have continued since then. As such, he should be afforded a VA examination for his right foot condition. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Further, a Social Security Administration (SSA) Inquiry indicates that the Veteran is receiving SSA benefits. Although the Veteran is over the age of 65, it is unclear whether he is receiving benefits due to age or disability. On remand, attempts should be made to determine whether the Veteran is in receipt of SSA disability benefits and if so, to obtain any documents related to the SSA award. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); 38 U.S.C.A § 5103A(c)(3). Since the claims file is being returned it should be updated to include VA treatment records compiled since December 2009. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Finally, on the remand, the AMC/RO should clarify the Veteran's address and he wants a hearing. Notice for the January 2104 hearing was returned as undeliverable; however, the Veteran's representative did not raise any question about the hearing in a March 2014 Informal Hearing Presentation. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Take appropriate action to confirm the Veteran's current address, contacting the representative if necessary. Then, clarify whether the Veteran still wants a videoconference before the Board and take appropriate action based on his response. 2. Obtain the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the Veteran for his right foot condition since December 2009. After obtaining the appropriate releases, those records not already associated with the claims folder should be obtained and associated with the claims folder. 3. Contact the Social Security Administration to determine whether the Veteran is receiving disability benefits and if so, obtain any administrative decisions and all medical records used in adjudicating the Veteran's SSA claim. 4. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the nature and likely etiology of any right foot condition. The claims file must be made available to the examiner for review. The examiner should conduct a thorough examination and identify any pathology found. Based on the examination and review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the right foot disability, other than a skin condition or athlete's foot, is etiologically related to the Veteran's active service. In providing the opinion, the examiner should consider the Veteran's assertions that his right foot condition resulted from in-service physical training. The examiner should provide a complete rationale for any and all conclusions reached. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the issue on appeal. If the claim remains denied, the RO/AMC should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. The case should be returned to the Board for appellate review. The Appellant 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 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). _________________________________________________ M. E. LARKIN 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).