Citation Nr: 1801091 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-04 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for right foot drop, to include as secondary to service-connected disability. ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board acknowledges that the Veteran submitted a claim for service connection for right foot drop in December 2009 that was denied in a February 2011 decision, which the Veteran appealed. However, the January 2006 rating decision is not final given that the Veteran filed a notice of disagreement (NOD) with the January 2006 denial of service connection for right foot drop in October 2006, which was not subsequently addressed by the RO. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2017). The Board observes that in his February 2013 VA Form 9, the Veteran requested a hearing before a Decision Review Officer (DRO). As reflected in an August 2016 report of general information, the Veteran failed to report to the scheduled hearing, and his attorney, who has since withdrawn from representing the Veteran, provided that the request for a DRO hearing was withdrawn. Therefore, the Board may proceed to adjudicate the instant claim. The Board notes that the issues of entitlement to increased ratings for bilateral flat feet, residuals of a fracture of the right wrist, degenerative disc disease of the lumbar spine, and left-sided radiculopathy; and to a total disability rating based on individual unemployability were certified to the Board in July 2017. However, as the scheduling of a requested Board videoconference hearing pertaining to these claims is pending, these matters are not yet ripe for review, and they will not be addressed further herein. See 38 C.F.R. §§ 3.103(c), 20.904(a)(3). The issue of entitlement to service connection for PTSD has been addressed in an October 2013 provisional rating decision. The Veteran filed an NOD with this decision in November 2013. However, as reflected in a January 2015 letter from the RO, the NOD could not be accepted as valid because the October 2013 rating decision was provisional, and it was therefore considered a request for a final decision. Based on a review of the record, it does not appear that a final decision has been issued by the Agency of Original Jurisdiction (AOJ). In addition, in August 2016, the Veteran submitted a VA Form 10-0103, Veterans Application for Assistance in Acquiring Home Improvement and Structural Alterations, but it does not appear that this issue has been addressed by the AOJ. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to service connection for right foot drop. VA neurology records dated in December 2004 and February 2005 indicate that there was some question as to whether his right foot drop was related to his service-connected lumbar spine disability. As reflected in his December 2009 claim via a VA Form 9, the Veteran contends that his right foot drop is related to his service-connected bilateral flat feet, as he has severe spasms. Before a decision can be reached, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has been afforded VA examinations in March 2005, July 2005, December 2008, and June 2010 that address his right foot drop. As reflected in the March 2005 VA examination report, the examiner did not have records of the Veteran's EMG or other neurologic evaluations. According to the examiner, MRI findings were not significant enough to cause foot drop, and therefore, he could not explain the Veteran's partial right foot drop. Based on the March 2005 VA examination report, MRI findings, a March 2005 VA EMG report, and VA neurological consultations, the July 2005 examiner opined that the Veteran's right foot drop was not caused by his service-connected lumbar spine disability. Specifically, the EMG stated that the level of injury appeared to be at the peroneal nerve along the fibula head, and it was therefore unrelated to his degenerative spine. The December 2008 and June 2010 examiners referenced the Veteran's right foot drop and noted that its etiology was unknown. As the VA examination reports do not address whether the Veteran's right foot drop was aggravated by his lumbar spine disability, a remand is warranted to obtain an additional medical opinion. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examiner should address the Veteran's contention regarding a possible relationship between his right foot drop and his service-connected bilateral flat feet. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private medical providers. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, obtain a medical opinion from an appropriate examiner regarding the Veteran's right foot drop. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following inquiries: a) The examiner should opine as to whether it is at least as likely as not that the Veteran's right foot drop was aggravated by his service-connected lumbar spine disability. b) The examiner should opine as to whether it is at least as likely as not that the Veteran's right foot drop was caused OR aggravated by his service-connected bilateral flat feet disability. In rendering any opinions, the examiner should, at a minimum, consider the March 2005, July 2005, December 2008, and June 2010 VA examination reports referenced above. "Aggravated" for VA purposes means that the condition is permanently worsened beyond its natural progression. If a service-connected disability is found to aggravate the Veteran's right foot drop, the examiner should identify the percentage of disability that is attributable to the aggravation. See 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 3. After completing the development requested above, in addition to any other development deemed necessary, readjudicate the Veteran's claim. If the benefit sought is not granted in full, the AOJ should furnish the Veteran an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. 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 any claim that is 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. _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).