Citation Nr: 1416812 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 08-24 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right foot disorder (claimed as residuals of broken bones of the right foot). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from July 1976 to September 1980. The matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In a December 2010 decision, the Board remanded the appeal for a hearing. The Veteran testified at a Travel Board hearing in May 2011; a copy of the transcript is of record. The issue, along with the issue of entitlement to service connection for hypertension, was again remanded by the Board for further development in October 2011 and March 2013. In a January 2013 rating decision, the RO granted service connection for hypertension and assigned a noncompensable rating. The Veteran filed a notice of disagreement (NOD) with the assigned rating in February 2013 and the RO acknowledged the NOD in an August 2013 correspondence. However, as will be discussed below, the Veteran has not yet been provided with a statement of the case in regards to this issue. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals a June 2013 Supplemental Statement of the Case (SSOC) and the aforementioned August 2013 correspondence. The other documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 contends that his right foot disability is related to an in-service injury sustained after jumping from a truck. The Board finds that further development is necessary prior to adjudication of the claim. In accordance with the March 2013 Board remand directives, the Veteran was afforded a new VA examination in April 2013. The Veteran reported that in 1994 he underwent right foot surgery to remove a sesamoid bone. The examiner went on to conclude that it would be pure speculation to determine whether the Veteran's current clinical findings of foot pain was in fact caused by an injury sustained while jumping off a truck while in the military. The examiner stated that his opinion was based on that fact that no documentation of the injury was found. The examiner did note that there was suggestive radiographic evidence of a prior bunionectomy and/ or the absence of a fibular sesamoid bone on the right foot. The examiner stated that without a prior examination for comparison or documentation of surgical intervention or removal of the bone she could not be certain of the medical history. The Board notes that there is no evidence of in-service treatment for a right foot injury in the Veteran service treatment records. In regards to the reported post-service treatment for his right foot, the Board notes that at the May 2011 Board hearing the Veteran testified that he provided the name of the doctor who treated him for his foot in 1994 and 1995. The Board also notes that in July 2005 the Veteran submitted a VA Form 21-4142 Authorization and Consent to Release Information for the Ankle and Foot Center for treatment from 2005 to the present. The RO sent request for these treatment records in August 2005 and January 2006, with no response. The Board thus finds a remand is necessary to afford the Veteran another opportunity to provide more information regarding the 1994 and 1995 treatment for his right foot as these records could be pertinent to the Veteran's claim. Finally, as stated above, the Veteran has not been provided with a statement of the case in regards to his disagreement with the rating assigned for his hypertension. As such, on remand the Veteran should also be provided with such. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be furnished a statement of the case that addresses the issue of entitlement to a higher rating for his service-connected hypertension. The issue should only be returned to the Board if the Veteran files a timely Substantive Appeal. 2. Contact the Veteran and ask that he submit or identify the names and addresses of the custodian holding the private records of his treatment for his right foot disability, to include a prior examination or documentation of the surgical removal of the sesamoid bone of the right foot, in 1994 and 1995. After securing the necessary authorizations, obtain any outstanding records properly identified by the Veteran. If any properly identified records are requested and unavailable, then the file should be annotated as such and the Veteran should be so notified. 3. If, and only if, the putative private records, to include a prior examination or documentation of the surgical removal of the sesamoid bone of the Veteran's right foot, are obtained, then arrange to have the Veteran's entire claims file reviewed by the VA examiner who conducted the April 2013 VA examination (if available), or another appropriate medical professional, for the purpose of providing an addendum to the opinion, which takes into consideration such private records. In making this assessment, please qualify your opinion by addressing the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's right foot disability is related to the Veteran's active military service, to include the Veteran's report that he injured his right foot when he jumped from a truck. The examiner is requested to provide a thorough rationale for any opinion provided. 4. After the development requested above has been completed to the extent possible, the RO should readjudicate the Veteran's claim. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ DEBORAH W. SINGLETON 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).