Citation Nr: 1618042 Decision Date: 05/04/16 Archive Date: 05/13/16 DOCKET NO. 10-04 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left foot disability, to include entitlement to compensation pursuant to 38 U.S.C.A. § 1151. 2. Entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), as a result of exposure to asbestos. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to November 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for a left foot disability, hepatitis, and a respiratory disability. The Veteran appealed all three issues in a March 2009 notice of disagreement. Thereafter, a November 2012 rating decision granted service connection for hepatitis. This was a full grant of the benefit sought, and the Veteran did not appeal the downstream issues of the disability rating or effective date assigned. As such, hepatitis is not on appeal. The Veteran testified at a September 2011 Board hearing before a different Veterans Law Judge (VLJ). A transcript of that hearing is of record. Subsequently, in December 2011, the Board remanded the appeal for additional development. In January 2013, the Board again remanded. The Board noted that the VLJ that had presided over the September 2011 Board hearing was no longer employed at the Board. On a December 2012 form, the Veteran indicated his desire for a video hearing. Accordingly, it instructed the RO to schedule a new Board hearing. Consequently, the Veteran testified before the undersigned VLJ at a Travel Board hearing held at the RO in August 2014. A transcript of that hearing is also of record. With regard to the issue of service connection for a left foot disability, the Board notes that, in an April 2012 statement, the Veteran reported that he filed a tort claim against a VA provider (initials: S.S.) that performed surgery on his left foot. He indicated that his left foot disability worsened as a result of this surgery. VA treatment records show that this surgery was performed in October 2009. See VA treatment records from the Alexandria, Louisiana, VA facility at 106 (in Virtual VA). The Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); see Robinson v. Peake, 21 Vet. App. 545 (2008) (holding that separate theories in support of a claim for benefits for a particular disability does not equate to separate claims for benefits for that disability). As such, the Veteran has put forward an alternate theory of entitlement for his left foot disability. The Board has recharacterized the issue on appeal to reflect this. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In his September 2011 Board hearing, the Veteran testified that he was diagnosed with COPD by a Louisiana-based private physician (initials: F.T.) in 1986 and that this physician related his COPD to his in-service exposure to asbestos. The December 2011 Board remand instructed the RO to assist the Veteran in obtaining such treatment records. In January 2012, the RO sent a letter to the Veteran, asking him to identify, authorize the release of, or otherwise submit, any relevant private treatment records. There is no indication that the Veteran has authorized the release of, or otherwise submitted, any private treatment records. Nevertheless, in his August 2014 Board hearing, the Veteran stated that relevant records had been submitted. See 2014 Board hearing transcript at 8. In light of this discrepancy, it appears that there are identified, relevant private treatment records that have not been made part of the record. Therefore, the Board finds the RO should make additional efforts to associate with the claims file such records. The Board also notes that the most recent VA treatment records on file were received in September 2012 (in Virtual VA). During his August 2014 Board hearing, the Veteran stated that, a month earlier, he had undergone X-rays for his lungs but he did not know the results of those X-rays. This suggests that there are outstanding VA treatment records that are yet to be associated with the claims file and a remand to associate them with the record is necessary. In a December 2008 statement, the Veteran stated that he was approved for Social Security Administration (SSA) benefits in 2006. There is no indication that the RO made efforts to obtain any available SSA records. As these records may be pertinent to the Veteran's claims, they should be requested. With regard to the issue of a left foot disability, the Veteran has testified that he was treated for a corn in his left foot in 1979, while in service. See August 2014 Board hearing transcript at 8. In this regard, he stated that he went twice to sick bay, that treatment in the form of scraping and salicylic acid pads did not help, and that he then resorted to self-treatment. He also testified that he has had left foot symptoms ever since. Id. at 9; see also July 2008 statement. The Veteran believes that his left foot disability is related to the use of boondocker boots in service. See August 2014 Board hearing transcript at 11; see also December 2009 statement. Following the December 2011 Board remand, the Veteran underwent an October 2012 VA examination for his left foot. The examiner diagnosed hallux valgus and degenerative joint disease, but opined that the claimed condition was less likely than not related to service. For his rationale, the examiner stated that there was no record of a diagnosis, treatment, or chronicity of a left foot disability in service, and that these developed post-service. This opinion relies on the absence of evidence of treatment to rule out a connection between the current disability and service. As such, an adequate opinion is not of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The 2012 VA examiner was fully informed of the relevant facts, which undermined the bases of the negative opinion. As such, the Board finds that a remand is necessary to obtain an opinion that shows adequate consideration of this evidence, to include the Veteran's report of symptoms and treatment in service and his contention that his left foot disability is due to the use of boondocker boots in service. See July 2008 statement; December 2008 statement; August 2014 Board hearing transcript at 8-12. As stated in the Introduction, the Veteran has raised the issue of compensation under 38 U.S.C.A. § 1151 as an alternative theory of entitlement for his claimed left foot disability. VA should provide notice to regarding this theory and obtain an opinion as to this aspect of the claim. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with proper notice on how to substantiate a claim for compensation under the theory of § 1151. 2. Ask the Veteran to identify any outstanding private treatment records, to include records of the left foot treatment referenced in the August 2014 Board hearing. After obtaining the appropriate release and authorization from the Veteran, obtain any identified treatment records. If the records are not available, notify the Veteran and offer an opportunity to provide the missing records. 3. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 4. Request copies of any determinations, medical records, and other evidence associated with any claim by the Veteran for SSA disability benefits. All records received should be associated with the claims file. If the records are not available, notify the Veteran and offer an opportunity to provide the missing records. 5. After directives #1-#4 have been completed, schedule the Veteran for VA examination to determine the nature and etiology of his claimed left foot disability. The examiner should review the claims file to become familiar with the relevant facts. The examiner is asked to respond to the following: (A) Is any current left foot disability, to include hallux valgus and degenerative joint disease, at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? Please consider and discuss, as appropriate, the Veteran's reports of treatment for a left foot corn in service and continuous symptoms ever since, and his contention that his left foot disability might be related to the use of boondocker boots in service. (B) Is it at least as likely as likely as not (50 percent probability or greater) that the Veteran incurred additional disability as a result of VA medical care, especially an October 2009 VA surgery? (C) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that the proximate cause of such disability or disabilities was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA performing the October 2009 surgery? In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (D) If additional disability or disabilities exist, is it at least as likely as not (50 percent or greater) that such was due to an event not reasonably foreseeable? In determining whether an event is not reasonably foreseeable, the standard is what a "reasonable health care provider" would have considered to be an ordinary risk of treatment that would be disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32, which requires the primary health care provider to explain the reasonably foreseeable risks associated with the surgery or treatment being provided. The examiner should explain the reasons for any opinion offered. The examiner must consider all relevant lay and medical evidence. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. 6. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). All claims remanded for additional development or other appropriate action must be handled expeditiously. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Paul Sorisio 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) (2015).