Citation Nr: 1623802 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 08-24 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right foot disability, claimed as residuals of a right foot fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to July 1978. The Veteran has additional service in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In September 2009, the Veteran and his wife testified at a hearing before a Decision Review Officer (DRO) at the Houston RO. A copy of the hearing transcript is associated with the claims file. In August 2011, the Board, in pertinent part, denied the claim of entitlement to service connection for a right foot disability, which the Veteran subsequently appealed to the United States Court of Appeals for Veteran's Claims (Court). In a June 2012 Joint Motion for Partial Remand, the Court vacated that portion of the August 2011 Board decision that denied service connection for a right foot disability and remanded the case to the Board for adjudication consistent with the Court's order. Specifically, the Court indicated that the September 2009 DRO hearing did not comply with VA's obligations under 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). In May 2013, the Board remanded the appeal to the RO for additional development, specifically to cure deficiencies in the September 2009 DRO hearing. Notably, the Board requested that the RO notify the Veteran to request that he either identify or secure and submit any additional evidence indicating that a right foot disability was related to his military service. In a July 2013 correspondence, the RO sent notice to the Veteran requesting that he identify or secure and submit any such evidence. Accordingly, the Board finds that substantial compliance with the directives of the May 2013 Board remand has been achieved. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall). Despite substantial compliance with the prior Board remand, however, another remand is required as additional development is needed prior to adjudication of the Veteran's claim. This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In December 2014 correspondence, the Veteran indicated that he has received ongoing treatment at a VA Medical Center in San Antonio, Texas, for a right foot condition. He requested an extension of 90 days so he could obtain and submit these treatment records in support of his appeal. To date, the Veteran has not submitted any VA treatment records and the claims file contains VA treatment records only through June 2007. It also appears there may be older VA treatment records outstanding. The file contains VA records from 1979, and a problem list contains a diagnosis provided in 1999. Therefore, the case must be remanded to obtain and associate with the claims file all outstanding VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from the San Antonio VA Medical Center from 1978 to the present. Since part of this time period pre-dates VA's electronic medical records system, a search MUST be made of archived/retired paper records, with negative replies documented if appropriate. 2. The RO/AMC should then review the additional VA treatment records received and determine whether it is appropriate to provide the Veteran a VA examination to assist in determining the etiology of any current right foot disability. 3. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ MICHELLE KANE 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).