Citation Nr: 1627386 Decision Date: 07/11/16 Archive Date: 07/22/16 DOCKET NO. 11-23 915A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a bilateral foot disability, to include as due to service-connected bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service in the Army from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) following a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which denied service connection for pres planus. The Board has recharacterized the issue more broadly to encompass any foot disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Jurisdiction over this case was subsequently transferred to the VARO in Roanoke, Virginia, and that office forwarded the appeal to the Board. The Veteran testified before the undersigned Veterans Law Judge in May 2016. The transcript of the hearing is contained in the claims file. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development of the claims. Service treatment records (STRs) show that at his January 1977 entrance medical examination, the Veteran had mild pes planus, which was asymptomatic. In November 1977, the Veteran reported that he injured his left foot during a physical training run. He complained of pain in the medial left foot with some point of tenderness in the medial-tarsal area, but the physician noted no edema, warmth, or bruising. The physician assessed him with a strain. In April 1979, the Veteran caught his foot between rocks while walking and fell, twisting his left knee. He did not have any complaints of foot pain due to this incident. In December 1979, the Veteran reported that he had pain his left foot for about one month. The physician noted plantar pain under the third, fourth, and fifth metatarsal heads. X-rays of both feet in December 1979 revealed early degenerative joint disease (DJD) in the first metatarsal phalangeal joint of the right foot, with spurring and early osteophytes. At the May 2016 hearing, the Veteran testified that his military occupational specialty (MOS) was in the 11 Bravo 10 Infantrymen, which required him to participate in 24-mile marches, 5-mile physical training runs every day, and 12-to 18-hour guard duty. He stated that he first noticed foot pain during basic training, but that his back started hurting shortly thereafter, which distracted him from the pain in his feet. He reported that he used over-the-counter medication to manage his foot pain and that he went to one private doctor post-service, who offered him injections for the pain, which he declined. He stated that he did not have a current diagnosis of pes planus, but that he had had continuous foot pain since service. In addition, he reported that he had been told that his bilateral foot condition could be a result of his service-connected bilateral knee arthritis. A veteran is competent to report a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). During the Board hearing, the Veteran's representative requested that the case be remanded for the Veteran to be afforded a VA examination. See Board Hearing transcript, at 14. Given that the evidence of record reflects that the Veteran's has persistent or recurrent symptoms of a bilateral foot disability that may be associated with service or a service connected disease, and the fact that the Veteran has not been provided with a VA examination, the Board will grant the request for a VA examination as to the nature and etiology of any disability of the feet. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Further, at his May 2016 hearing, the Veteran reported that he saw a doctor sometime after his discharge from service and that he was offered injections for his foot pain. However, the claims file does not contain any post-service private medical treatment records. In addition, the Board notes that the Veteran received treatment from the Jackson VA Medical Center (VAMC) and Washington VAMC, but that the most current records on file from the Jackson VAMC are from February 2009, and from the Washington VAMC are from September 2009. Any relevant, outstanding VA treatment records should 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). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from the Jackson VAMC since February 2009, from the Washington VAMC since September 2009, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. If any identified records cannot be obtained or further attempts to obtain them would be futile, take action in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to complete a VA Form 21-4142 to obtain any private treatment records not yet associated with the claims file, to specifically include treatment records from the private doctor who offered injections for his foot pain. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained or further attempts to obtain them would be futile, take action in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination to determine the etiology of any bilateral foot disability. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should indicate whether the Veteran has any current right or left foot disability, to include pes planus and DJD. For any current foot disability identified, the examiner shall answer all of the following questions: (a) If the Veteran is diagnosed with pes planus, the examiner should offer an opinion addressing whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's preexisting pes planus noted on the entrance examination was aggravated by service. (b) For any other identified foot disorder, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or more) that any current foot disorder had its clinical onset in service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), or is otherwise the result of a disease or injury in service? (c) The examiner should also offer an opinion addressing whether it is at least as likely as not (50 percent probability or more) that any current foot disorder was either (i) caused or (ii) aggravated by the Veteran's service-connected bilateral knee arthritis. If any current foot disability was aggravated by a service-connected disability, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should specifically discuss the Veteran's contentions that he had to participate in 24-mile marches, 5-mile physical training runs every day, and 12-to 18-hour guard duty, as well as the Veteran's competent and credible statements that his bilateral foot pain started in service and continued thereafter. The examiner should also discuss the Veteran's diagnosis of left foot strain and right foot DJD while in service. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 4. After completing any additional development deemed necessary, readjudicate the claim remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ Jonathan Hager 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).