Citation Nr: 1800482 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-18 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right foot disorder, to include plantar fasciitis. 2. Entitlement to service connection for a right ankle disorder. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to June 1981. This appeal is before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for a right foot disorder, specifically right foot plantar fasciitis; and for a right ankle disorder. In August 2015 and December 2016, the Board remanded both issues for further evidentiary development. The Veteran testified before the undersigned Veterans Law Judge at a November 2017 Travel Board hearing, and a transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). The RO provided the Veteran with a Travel Board hearing in November 2017 and thus complied with the December 2016 Board remand instructions. However, the prior August 2015 Board remand instructed the AOJ to 1) obtain and associate with the record the Veteran's complete service treatment records (STRs), 2) make a formal finding of unavailability and provide the Veteran with proper notice if all procedurally appropriate actions were taken to locate and secure the Veteran's complete STRs and it was determined that such records did not exist or that further efforts to obtain them would be futile, 3) provide VA examinations to determine the current severity of the Veteran's right foot and right ankle disorders, and 4) readjudicate the claims. The AOJ attempted to provide VA examinations, and readjudicated the claims in an April 2016 Supplemental Statement of the Case (SSOC). However, the record does not indicate that the RO has made any attempts to obtain any outstanding records or has made a formal finding of unavailability regarding any STRs that may have been destroyed in Iran. As previously stated in the August 2015 Board remand, the Veteran asserted that many of his STRs were destroyed in Iran. The Board notes that the Veteran's military personnel records states that he was in Iran from about January 5, 1979, to approximately February 18, 1979; and that all of the Veteran's military personnel records jackets were lost as a result of the evacuation from Iran. Additionally, it appears that VA examinations were scheduled, to which the Veteran failed to report. However, in a May 2016 Report of General Information, the Veteran provided a new address and stated that he never received any notice regarding the VA examinations. As such, new VA examinations should be provided to evaluate the nature and etiology of the Veteran's claimed right foot and right ankle disorders. Furthermore, at the November 2017 Board hearing, the Veteran referred to treatment in Fort Lauderdale and Deerfield. However, he did not provide those treatment records, nor did he provide authorization for VA to attempt to obtain them on his behalf. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record the Veteran's complete STRs. If all procedurally appropriate actions have been taken to locate and secure the Veteran's STRs, and it is determined that such records do not exist or that further efforts to obtain them would be futile, the RO must make a formal finding to that effect. The RO must also provide the Veteran with a proper notice that meets the requirements under 38 U.S.C. § 5103A(b)(2) (2012) and 38 C.F.R. § 3.159(e) (2017) and includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the Veteran is ultimately responsible for providing the evidence. 2. Request that the Veteran furnish appropriate authorization to obtain treatment records from healthcare providers who treated him for his claimed right foot and right ankle disorders, specifically private healthcare providers in Ft. Lauderdale and Deerfield and any others noted at his November 2017 Board hearing. Once received, attempt to obtain the treatment records. All records obtained must be associated with the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file in accordance with 38 C.F.R. § 3.159(c)(1) (2017). Additionally, if the records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. Allow the Veteran an appropriate amount of time to respond. 3. Then, provide the Veteran with a VA examination to determine the nature and etiology of his claimed right foot disorder. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran's claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: *December 1977 and May 1981 examination reports reflecting normal clinical evaluations of the feet and the Veteran's denial of any foot trouble. *A July 1979 examination report revealing a normal clinical evaluation of the feet and the Veteran's report of foot trouble. *A February 1980 STR reflecting the Veteran's complaint of having no feeling in his toes for four days and assessment of hypothermia. *The September 2009 claims application in which the Veteran stated that he was treated for a right foot injury during service in June 1981 due to wearing boots and reported constant foot pain. *The Veteran's October 2009 statement in which he noted that his prior military records were destroyed in Iran, that he did not desire to claim any physical disability at the time of separation as he just "wanted to get out," that he had a right foot injury, and that he was detained by religious sect loyalists in January or February 1979. *A January 2010 Notice of Disagreement in which the Veteran reported pain in his entire right foot in his toes, ball, heel, and ankle. *A November 2009 VA examination report reflecting a diagnosis of bilateral plantar fasciitis and no findings of residuals of a cold injury. *The November 2017 Board hearing transcript where the Veteran reported frostbite in his right foot during service, only "minor injuries when [he ran]" with combat boots for the remainder of service, aggravation during service due to the boots, and his current symptoms. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Clarify whether the Veteran has a current disability involving his right foot. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed right foot disorder had an onset during the Veteran's active service or was caused by or related to his active service, specifically to any in-service cold injury to his right foot or due to his combat boots. All opinions are to be accompanied by a rationale consistent with the evidence of record. 4. Provide the Veteran with a VA examination to determine the nature and etiology of his claimed right ankle disorder. All test and studies deemed necessary shall be performed. The examiner should be provided with the Veteran's claims file, including a copy of this remand. Although a complete review of the record is imperative, attention is called to the following: * December 1977, July 1979, and May 1981 examination reports reflecting normal clinical evaluations of the lower extremities and the Veteran's denials of swollen or painful joints; arthritis, rheumatism, or bursitis; and bone, joint, or other deformity. *The September 2009 claims application in which the Veteran reported constant ankle pain. *The Veteran's October 2009 statement in which he noted that his prior military records were destroyed in Iran, that he did not desire to claim any physical disability at the time of separation as he just "wanted to get out," that he had a right foot injury, and that he was detained by religious sect loyalists in January or February 1979. *A January 2010 Notice of Disagreement in which the Veteran reported pain in his entire right foot in his toes, ball, heel, and ankle. *The November 2017 Board hearing transcript where the Veteran reported that he had no in-service injury to his right ankle but that he experienced weakness in his right ankle when he was stationed in Iran in late 1978 or 1979, and that he was informed post-service that he had a fractured or a chipped bone. After reviewing the claims file and examining the Veteran, the examiner is asked to address the following: a) Clarify whether the Veteran has a current disability involving his right ankle. b) If so, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed right ankle disorder had an onset during the Veteran's active service or was caused by or related to his active service, specifically to any claimed in-service right ankle weakness. All opinions are to be accompanied by a rationale consistent with the evidence of record. 5. After determining whether any additional development is necessary, readjudicate the Veteran's claims for service connection for right foot and right ankle disorders. If the benefits sought on appeal are not granted, the Veteran should be provided a SSOC and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs