Citation Nr: 1751815 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-09 606A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a bilateral foot disability, claimed as gout. 4. Entitlement to a disability rating in excess of 60 percent for a duodenal ulcer with sliding hiatal hernia and irritable bowel syndrome. WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1995 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In July 2016, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay, but finds that additional development is necessary before a decision can be rendered regarding the claims on appeal. Regarding the issue of entitlement to service connection for a bilateral foot disability, an August 2017 VA examination report was negative; however, the opinion was solely based on the fact that the service treatment records did not show treatment. The Veteran has consistently contended that he felt pain in his feet while in service and that an injury to his foot in-service required him to wear a boot for a few months. The Veteran is competent to report the circumstances of his foot injury in service, and that he has experienced chronic foot pain since service; and in the absence of any reason shown to doubt his credibility, his statements must be considered in deciding the etiology of the current bilateral foot disabilities. Additionally, because the record suggests that some of the Veteran's service treatment records have been lost, VA has a well-established heightened duty to assist. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Regarding the issues of entitlement to service connection for left ankle and back disabilities, those matters are inextricably intertwined with the claim being remanded as the Veteran has claimed that they may be secondary to the bilateral foot disability. As such, the Board will defer action on the issue of entitlement to service connection for left ankle and back disabilities until after the issue of entitlement to service connection for a bilateral foot disability has been adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The Board further notes that the Veteran has not been afforded a VA examination for his claimed left ankle disability. The Board finds there is insufficient competent medical evidence on file to make a decision on the claim, and a remand is required per the low threshold outlined in McLendon to obtain a VA examination and opinion to assess the nature and etiology of the Veteran's left ankle disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the service connection claim for the back disability, the Board notes that the most recent VA examination for the back was in December 1998. There is indication that the Veteran has received ongoing treatment for chronic back pain, and there is evidence of in-service treatment for chronic back pain. The Veteran also testified that his back pain may be secondary to his bilateral foot disability. The Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any current back disability. Finally, in the October 2016 remand, the Board requested that the AOJ issue an appropriate Statement of the Case addressing the Veteran's claim for an increased disability rating for a duodenal ulcer with sliding hiatal hernia and irritable bowel syndrome under a different diagnostic code or, alternatively, assigning separate ratings for the ulcer, hernia, and irritable bowel syndrome. However, the case was returned to the Board without the issuance of a statement of the case. The November 2012 rating decision granted 60 percent evaluation, which the RO considered a complete grant of benefits sought. The Veteran contended at the July 2016 Board hearing that a higher rating is warranted for his ulcer under a different diagnostic code, or that separate ratings are warranted for ulcer, hernia, and irritable bowel syndrome. The RO issued an August 2017 deferred rating stating that it was "unable to accept [the Veteran's] testimony as a NOD, or a request for application for an NOD because it was not received within the one year appeal period following the [May 2015] notification. Unfortunately, the RO misconstrued the remand directives. The issue is not whether the Veteran's testimony at the July 2016 Board videoconference hearing constitutes a proper NOD; rather, the issue is whether the previous NOD remains unresponded to, which it does. The prior NOD remains active; the NOD was timely. The Veteran's contentions that a higher rating is warranted for his ulcer under a different diagnostic code, or that separate ratings are warranted for ulcer, hernia, and irritable bowel syndrome have not been addressed by the AOJ. Thus, the AOJ must issue a statement of the case, in compliance with the prior remand. Stegall v. West, 11 Vet. App. 268 (1998); Manlincon v. West, 12 Vet. App. 238, 240 (1999). Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding treatment records that are not already associated with the claims file. All reasonable attempts should be made to obtain any identified records. 2. After completion of directive #1, obtain an addendum opinion from an appropriate VA medical professional to ascertain the nature and etiology of the Veteran's bilateral foot disability. The Veteran's record, to include this remand, must be made available for the examiner to review. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran's statements, and explain the rationale for the opinion given. After review of the pertinent medical history and the Veteran's lay statements, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current bilateral foot disability that is related to service. 3. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate VA medical professional to ascertain the nature and etiology of his left ankle disability, including whether any current left ankle disability is related to his bilateral foot disability. After a review of the record on appeal and an examination of the Veteran, the examiner should state all diagnosed left ankle disabilities and provide answers to the following questions: a) whether it is at least as likely as not (a 50 percent or greater probability) that any current left ankle disability is etiologically related to an in-service injury, disease, or event; b) whether it is at least as likely as not (a 50 percent or greater probability) that any current left ankle disability is (1) proximately due to (caused by) the Veteran's bilateral foot disability, or (2) worsened (aggravated) by the Veteran's bilateral foot disability. 4. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate VA medical professional to ascertain the nature and etiology of his left ankle disability, including whether any current back disability is related to his bilateral foot disability. After a review of the record on appeal and an examination of the Veteran, the examiner should state all diagnosed back disabilities and provide answers to the following questions: a) whether it is at least as likely as not (a 50 percent or greater probability) that any current back disability is etiologically related to an in-service injury, disease, or event; b) whether it is at least as likely as not (a 50 percent or greater probability) that any current back disability is (1) proximately due to (caused by) the Veteran's bilateral foot disability, or (2) worsened (aggravated) by the Veteran's bilateral foot disability. 5. The AOJ should then review the obtained VA examination reports to ensure that the opinion contained therein is responsive to the question posed. 6. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claims on appeal. If any benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. 7. The AOJ should review the record and issue an appropriate SOC addressing the claim for a disability rating in excess of 60 percent for a duodenal ulcer with sliding hiatal hernia and irritable bowel syndrome, to include rating under a different diagnostic code, or assigning separate ratings for the ulcer, hernia, and irritable bowel syndrome. The Veteran must be advised of the time limit for filing a substantive appeal, and that, in order for the Board to have full jurisdiction in the matter, he must timely file a substantive appeal. If that occurs, this matter should be returned to the Board. 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). 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).