Citation Nr: 1516914 Decision Date: 04/20/15 Archive Date: 04/24/15 DOCKET NO. 08-28 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a right foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2009, the Veteran was afforded a hearing before a Decision Review Officer at the Roanoke RO. A transcript of the hearing is of record. In an April 2014 decision, the Board denied the Veteran's appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2015, the Court granted a joint motion of the parties and remanded the case to the Board for action consistent with the joint motion. The record before the Board consists of the Veteran's paper claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). REMAND At the outset, the Board notes that this case was previously remanded in December 2010 and May 2013 to effectuate development of various issues. In particular, the RO or the Appeals Management Center (AMC) was instructed to make all reasonable efforts to obtain the Veteran's Reserve duty records. The RO or the AMC was specifically advised that they should obtain sufficient information from the Veteran to perform development to obtain those records. Although the AMC sent the Veteran a letter in December 2010, and the Veteran responded the same month, insufficient information was provided by the Veteran to conduct a meaningful search for Reserve records. The AMC failed to inform the Veteran what additional information was required to develop for those records; instead, the AMC sent a letter advising the Veteran that he may provide documents that could substitute for service treatment records. Then, in May 2012, the AMC drafted a Formal Finding of Unavailability relative to these records. However, the efforts taken by the AMC do not fulfill VA's duty to assist the Veteran in accordance with 38 C.F.R. § 3.159. In sum, the AMC has not sufficiently developed to ensure the records sought do not exist or that a follow-up request for the records would be futile. See 38 C.F.R. § 3.159(c)(1). As such, the RO or the AMC should inform the Veteran specifically of the information that is required to obtain his Reserve duty records, and make all reasonable efforts to obtain these records from both the NPRC and the Veteran's Reserve unit. Additionally, the Board also issued a remand in May 2013, which in part sought a clarifying medical opinion from the January 2011 VA examiner. During the January 2011 VA examination, the examiner found the Veteran's right foot disability to be unrelated to military service. In support of his opinion, the examiner reasoned the Veteran denied residual foot problems on separation examination, and did not subsequently seek treatment for his foot until 1987. In its May 2013 Board remand, the examiner was asked to clarify two issues regarding his medical opinion. First, the examiner was asked to discuss several pieces of medical evidence that were inconsistent with the examiner's medical opinion. In particular, the evidence indicates the Veteran was treated for a right ankle sprain in 1979. Additionally, the medical evidence shows the Veteran's foot care began in 1984, not 1987. The examiner was specifically asked to address whether the Veteran's post service severe ankle sprain in December 1979 or right foot problems resulting in surgery in 1984, 1986 and 1988 were etiologically related to the injury he sustained in military service. The examiner was also asked to fully explain why the lack of right foot complaints at discharge from active duty indicates the Veteran's current foot problems are unrelated to the injury he sustained in service. An addendum medical opinion was provided in June 2013. However, this opinion did not address the above noted issues. Rather, the examiner provided a virtual carbon copy of the prior opinion, with the added statement: "The conditions for which he sought surgical treatment occur rather frequently in the general population, and I find no reason to conclude that the injury which occurred during his time of service, directly caused the foot issues occurring 20 years later." This statement fails to substantially comply with the questions posed in the Board's May 2013 remand. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since the AMC did not substantially comply with the Board's December 2010 and May 2013 remands, additional development is necessary. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC must undertake all indicated development to obtain the Veteran's Reserve records. The RO or the AMC must either obtain the Veteran's records, ensure the records sought do not exist or ensure a follow-up request for the records would be futile. 2. The RO or the AMC should also undertake appropriate development to obtain any other outstanding records pertinent to the Veteran's claim. 3. Then, the RO or the AMC should obtain an addendum medical opinion from the VA examiner who conducted the January 2011 VA examination. The examiner must address the questions posed in the May 2013 Board remand. If the prior examiner is not available, all pertinent evidence of record should be made available to and reviewed by another physician with sufficient expertise who should be requested to provide the required opinions with adequate supporting rationale. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin 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).