Citation Nr: 1805087 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-30 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a right foot condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1971, and in the United States Army National Guard from April 1980 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Veteran initially requested a videoconference Board hearing; however, in January 2014, the Veteran withdrew his hearing request. In September 2014, the Board remanded the case in order to provide the Veteran with a new VA examination that would assess the nature and etiology of any orthopedic and neurological disabilities of his right foot. The opinion was asked to address the Veteran's lay assertions that his right foot pain was chronic and continuous since service. In April 2017, the Board remanded the case for an additional time, in order to assist the Veteran with locating private treatment records related to his claim and obtaining an addendum medical opinion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that despite substantial compliance with the Board's remand directives, the record raises various medical questions, which makes it necessary to obtain an additional comprehensive VA neurological and orthopedic foot examination with nexus opinion before further development is undertaken. Specifically, the Board notes that over the years the Veteran has been diagnosed with various right foot disabilities, but previous medical opinions did not fully address all of the disabilities. Moreover, both the October 2014 and July 2017 VA examiners disregarded the Veteran's lay assertion based on lack of contemporaneous medical records since his separation from active duty. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim). Lastly, the record indicates that some of the Veteran's foot disabilities may be congenital and thus deemed to preexist service. Service connection for congenital or developmental defect is precluded by 38 C.F.R. §§ 3.303 (c), 4.9. VA's Office of the General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990); O.G.C. Prec. Op. 67-90, 55 Fed. Reg. 43253 (1990). Defects were defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990). However, congenital or development defects may be service-connected where a superimposed injury occurs during, or as a result of, active service. VAOPGCPREC 82-90. Thus, further opinion is required to determine if the conditions are congenital defects or diseases. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records related to the right foot condition. 2. Thereafter, provide the Veteran with a comprehensive foot examination that would address both neurological and orthopedic disabilities, including but not limited to: idiopathic neuropathy, pes cavus/clawfoot, metatarsus primus varus/hallux valgus deformity, osteoarthritic changes, and spurring of the Achilles insertion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the examiner is asked to: (a) Identify all of the current right foot disabilities. If right foot disabilities that were previously diagnosed are NOT currently shown on examination, the examiner MUST still address the prior diagnoses and explain why they have resolved or otherwise no longer result in any pathology. (b) For any right foot disability that is determined to be "congenital," clarify whether it is a "congenital disease" or "congenital defect," (generally, a congenital abnormality that is subject to improvement or deterioration is considered a disease)? Then respond to the following: (i) If it is a congenital foot disease, is it at least as likely as not (a 50 percent or greater probability) that the congenital disease was aggravated by service? (ii) If it is a congenital foot defect, was it subjected to a superimposed injury during service? (b) For any other right foot disability diagnosed during the pendency of the appeal, opine whether it is at least as likely as not (greater than 50 percent), had its onset during active service, or is otherwise related to an event, injury, or disease incurred during active service. **Specifically address the documented in-service injury and the Veteran's lay assertions that the fall he sustained was from about 50 feet high. The examiner must also comment on Private treatment records from Advanced Foot and Ankle Specialists, PC dated November 2011 The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary. 3. After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the appellant and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The appellant 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). _________________________________________________ H. SEESEL 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).