Citation Nr: 1801934 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-07 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis, pes planus, arthritis, and hammertoes; to include as secondary to service-connected residuals of partial tear of the Achilles tendon. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spigelman, Associate Counsel INTRODUCTION The Veteran had active air service from October 1976 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This case was previously before the Board, most recently in December 2016, at which time the Board denied the Veteran's claim on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2017 Order, the Court granted a Joint Motion of the parties vacating the December 2016 decision and remanding the case to the Board for action consistent with the Joint Motion. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge at the RO in March 2014. A transcript of that hearing has been associated with the claims file. However, the Veterans Law Judge who presided over that hearing is no longer with the Board. In an October 2017 letter, the Veteran was informed of that fact and notified of his right to have a new hearing before a current member of the Board before a decision was made in his appeal. In a November 2017 response, the Veteran reported that he did not wish to appear at another hearing before a current member of the Board and preferred that his case be considered based on the evidence of record. REMAND The Board finds that additional development is required before the claim on appeal is decided. In the July 2017 Joint Motion of the parties, it was determined that the September 2015 VA examination relied upon by the Board to deny the claim on appeal in the December 2016 decision was inadequate for a variety of reasons. Therefore, the Board finds that the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present foot disability. Additionally, subsequent to the July 2017 Court Order, the Veteran submitted additional evidence for consideration in his appeal. The Veteran also specifically denied waiving review by the Agency of Original Jurisdiction (AOJ) and requested that his case be returned to the AOJ for consideration of the newly submitted evidence. Additionally, current treatment records should be identified and obtained before a decision is rendered in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with appropriate expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present foot disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide the following: a) Identify all foot disabilities currently present. b) Provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present foot disability is etiologically related to the Veteran's active service. c) Provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present foot disability was caused or chronically worsened by the Veteran's service-connected residuals of the partial left Achilles tendon tear, to include any altered gait/body mechanics resulting from such. In forming the opinion, the examiner should specifically address the September 2017 letter from the Veteran's private podiatrist, Dr. A.D. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case 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. §§ 5109B, 7112 (2012). _________________________________________________ Kristin Haddock 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).