Citation Nr: 1622607 Decision Date: 06/06/16 Archive Date: 06/21/16 DOCKET NO. 10-28 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a right heel spur with plantar fasciitis (claimed as a right foot condition). REPRESENTATION Veteran represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1994 to November 1997 and from August 2001 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. In November 2010, the Veteran testified at a Decision Review Officer (DRO) hearing at the RO. A transcript of the hearing is associated with the record. In December 2013, the Board remanded the claim for further development and adjudicative action, to include obtaining outstanding private and VA treatment records, and an adequate VA medical opinion. The case has been returned to the Board for further appellate review. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Remand is required ensure a complete record on which to base a decision and to obtain an adequate medical opinion to resolve the question of whether the Veteran has a right foot disability caused by service. VA's duty to assist requires it to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate his or her benefits claim. 38 U.S.C.A. § 5103A(a)(1) (West 2014). This duty has not been fulfilled. During the November 2010 DRO hearing, the Veteran indicated that in 2005, he was diagnosed with "right heel spurs" at Bert Fish Memorial Hospital in New Smyrna, Florida. See the DRO hearing transcript, p. 19-33. There is no indication that these records were submitted by the Veteran or requested by VA. The Veteran underwent a VA examination in May 2014 to determine the etiology of his right heel spur. The examiner indicated that he was unable to provide an opinion without resorting to mere speculation because "there is a lack of evidence" to form an opinion. The United States Court of Appeals for Veterans' Claims (Court) has directed that, before the Board can rely on an examiner's conclusion that an opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence; it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered all procurable and assembled data; and the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jones v. Shinseki, 23 Vet. App. 382, 393-94 (2010). It is not evident from the record that the examiner's use of the phrase "without resort to mere speculation" reflects "the limitations of knowledge in the medical community at large." When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As this is not an adequate opinion for which the Board to adjudicate this claim, and there appears to be outstanding private treatment records that may assist the examiner, a remand for a new examination is warranted. In light of the remand, relevant ongoing VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). The most recent VA treatment records date from June 2014 at the West Haven, Connecticut VA Medical Center (VAMC). Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. The AOJ should specifically request that the Veteran provide a signed authorization to enable it to obtain all outstanding private treatment records in approximately 2005, from Bert Fish Medical Center, located in New Smyrna Beach, Florida. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain updated VA treatment records from June 2014 to the present. 3. Upon completion of directives #1 and #2, schedule the Veteran for an examination and provide him/her access the claims file. The examiner should offer an opinion as to whether it is at least as likely as not that the right heel spur manifested in service or is etiologically related to his military service. If possible, the examiner should be someone other than the examiner who performed the May 2014 VA examination. In rendering this opinion, the examiner is requested to address the Veteran's contention that he developed right foot pain from running and pounding on his feet during service. The examiner is also requested to address the Veteran's work history, to include his employment as a letter carrier with the United States Postal Service from August 2004 to January 2008. The examiner must provide a rationale for each proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Nathaniel J. Doan 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).