Citation Nr: 1632024 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 13-15 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a bilateral leg disability. 2. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1955 to February 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Board denied entitlement to service connection for bilateral leg and foot disabilities in a January 2015 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2016 order, the Court granted a partial remand of the claims to the Board for action consistent with the joint motion for a partial remand. The Board notes that the claim for an increased evaluation for bilateral hearing loss was dismissed by the Court and is not currently before the Board. The Veteran testified at a hearing in April 2014 before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). REMAND In the April 2016 Joint Motion for a Partial Remand, the parties indicated that the Board failed in its duty to assist by not ensuring that a VA examination report was adequate for adjudication purposes. Historically, a June 2014 Board remand directed that the Veteran be afforded a VA examination to determine the nature and etiology of any bilateral leg and/or foot disabilities. The Veteran was provided a VA examination in August 2014 that determined the Veteran had diagnoses of bilateral pes cavus, hammer toes, and polyneuropathy of the lower extremities. The April 2014 VA examiner opined that the bilateral foot and lower extremity disabilities were not related to active service. In support of the opinion, the VA examiner provided a summary of the Veteran's available medical records, lay statements by the Veteran, and the current examination findings. In the January 2015 decision, the Board found the April 2014 VA opinions against the claims were adequately based on a review of the record and included a rationale that was in compliance with the June 2014 remand. The parties found this to be improper and requested that a new VA examination report be obtained. Consequently, the Board must remand the claims to afford the Veteran another VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand). Accordingly, the case is REMANDED for the following actions: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain copies of all VA treatment records for the Veteran dated from March 2014 to the present. All efforts to obtain these records must be documented in the claims file. 2. Schedule the Veteran for another VA examination to determine the nature and etiology of his bilateral foot and lower extremity disabilities. The Veteran's claims file and a copy of this remand must be made available to, and contemporaneously reviewed by, the examiner. The examiner should diagnose and list all bilateral foot and lower extremity disorders present during the period of the claim. With respect to each bilateral foot and lower extremity disability, the examiner is asked to express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that each disability began in service, was cause by service, or is otherwise related to service. In making these determinations the examiner must specifically consider and address the Veteran's and M.P.'s statements regarding the Veteran's in-service symptoms and continued symptoms since service. The examiner is also advised that the Veteran's records are fire-related and there are no other service treatment records available for review. A complete rationale must be provided for any opinion offered. 3. After completing the above development and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for review. The appellant 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).