Citation Nr: 1800238 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-08 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a brain tumor. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disability. 3. Entitlement to service connection for a foot disability, to include pes planus, plantar fasciitis/fibromatosis (claimed as tumors of the feet). REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1979 to May 1982, and from May 1994 to September 1994, with additional Reserve service, to include a period ofbush active duty for training (ACDUTRA) in August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The record reflects the Veteran requested a hearing before a Veterans Law Judge of the Board in conjunction with this appeal. Such a hearing was scheduled for September 2017, but the Veteran did not report for that hearing and no good cause has been demonstrated for not reporting to this hearing. Consequently, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). The Board notes that a prior February 2009 Board decision declined to reopen the Veteran's previously denied claim of entitlement to service connection for a foot disability. However, since that decision, VA has received a relevant official service department record that existed and had not been associated with the claims file at the time of the prior denial, requiring VA to reconsider the claim on the merits. 38 C.F.R. § 3.156(c). That issue has been accordingly recharacterized on the title page, and is remanded along with the other claims to the agency of original jurisdiction (AOJ). VA will advise the Veteran if further action on his part is required. REMAND Regarding the foot claim, remand is needed for a VA examination and medical opinion, given his current foot problems, documented foot problems in service, and the January 2011 statement from his podiatrist. Additionally, all periods of ACDUTRA and inactive duty for training (INACDUTRA) should be verified on remand. As to the remaining claims to reopen, the Board notes that the Veteran has identified relevant evidence concurrent to the onset of his brain tumor just after his 1991 period of ACDUTRA that must be obtained on remand. Additionally, as a substantial portion of the Veteran's service treatment records (STRs) are currently unavailable, and given that he recently submitted a 1994 STR, an additional search is needed for all available STRs on remand. Any other outstanding treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Contact the NPRC or appropriate records custodian to obtain the Veteran's complete STRs, with particular focus on May 1979 to November 1981 STRs and any 1994 Reserve STRs documenting treatment of back problems in Germany. Document all correspondence and responses received. Continue search efforts until it clear that additional request would be futile, and notify the Veteran as appropriate. 2. Verify the Veteran's specific dates of ACDUTRA or INACDUTRA. Please note that reports of retirement points do not contain the necessary information in this regard. 3. Obtain all outstanding VA treatment records. 4. With any necessary assistance from the Veteran, obtain the records of treatment of the Veteran's brain tumor identified in the October 2011 Statement in Support of Claim, as well as any additional relevant private treatment records. 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot disability. The claims file must be reviewed, and all findings reported in detail. Following examination of the Veteran, the examiner should identify all current bilateral foot disorders present since February 2011, to include pes planus, plantar fasciitis/fibromatosis. For each foot disability so diagnosed, the examiner must opine as to whether is at least as likely as not (50 percent or greater probability) that such disability had its onset during active service or during any period of ACDUTRA, is related to an injury during a period of INACDUTRA, or is otherwise etiologically related to the Veteran's service. In addressing this question, the examiner should discuss the September 1994 physical profile for foot problems and the January 2011 statement from Dr. D.B. The VA examiner is requested to provide a thorough rationale for any opinion provided. If the examiner is unable to provide an opinion without resorting to speculation, the examiner should explain why a definitive opinion cannot be provided. 6. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and afford the Veteran and his representative an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).