Citation Nr: 1511357 Decision Date: 03/17/15 Archive Date: 03/27/15 DOCKET NO. 11-19 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral heel spurs. ATTORNEY FOR THE BOARD Alicia R. Bordewyk INTRODUCTION The Veteran served on active duty from January 1974 to December 1977 and from August 2002 to July 2003, with service in the Kentucky National Guard from April 1989 to October 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the above claimed benefits. The claim was remanded in July 2012 and September 2014 for additional development. Unfortunately, the requested development has not yet been completed. As such, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As explained in the July 2012 and September 2014 Board remands, prior VA examinations and opinions have been inadequate as the examiner did not consider the Veteran's reports that he began to experience bilateral foot pain during service and that the pain has continued since. Upon remand, the examiner who conducted the August 2012 VA examination was to provide an etiology opinion which specifically considered the Veteran's statements, including statements in the February 2011 notice of disagreement and July 2011 VA Form 9. In December 2014, the examiner who conducted the August 2012 VA examination provided a new etiology opinion. However, the examiner failed to provide any discussion of the Veteran's reports of in-service and post-service foot pain. As the Board's September 2014 remand order has not been complied with, remand of the issue is necessary. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). An opinion as to the etiology of the Veteran's bilateral heel spurs which considers his reports of in-service incurrence and continuity since service must be provided. As the same examiner has had multiple opportunities but has failed to provide the necessary opinion, the Board requests that a new VA examination be provided so that a new examiner can interview the Veteran about his reported in-service symptoms and the continuity of those symptoms and determine whether those symptoms are linked to his current bilateral heel spurs. All outstanding records of ongoing VA treatment must also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records and associate them with the virtual claims file. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above development has been completed, provide the Veteran with a VA podiatry examination with a qualified physician to determine whether the current bilateral heel spurs disability is related to service. The claims folder, including this remand and any relevant records contained in the virtual system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current bilateral heel spurs disability had onset in service or is otherwise related to a disease or injury in service, including the reported in-service bilateral foot pain during service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of his history, the reported in-service injuries, exposures, or events, and his current symptoms. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 4. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim 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 2014). _________________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).