Citation Nr: 1805214 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-05 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for bilateral hallux valgus. 2. Entitlement to service connection for hepatitis. 3. Entitlement to service connection for right plantar callosities. 4. Entitlement to service connection for right hammer toes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active duty from November 1972 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of May 2009 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Historically, the Board notes that in his May 2010 formal appeal, the Veteran requested a travel Board hearing in connection with his claim for service connection for bilateral hallux valgus; however, he later withdrew this request in May 2011. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2016. A transcript of the hearing is associated with the electronic claims file. At the Board hearing, the Veteran requested that the record be held open for 30 days to allow for the submission of additional evidence. See 38C.F.R. § 20.709 (2017). The record was held open, and additional private treatment records were submitted in November 2016. When this case was previously before the Board in February 2017, it was decided in part and remanded in part for additional evidentiary development. It has since been returned to the Board for further appellate action. This appeal includes documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, this matter must be remanded because there was not substantial compliance with the Board's April 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Veteran contends, and testified before the undersigned, that he developed bilateral hallux valgus, right plantar callosities, and right hammer toes as a result of wearing tight boots in service while marching and running daily. In response to the Board's February 2017 remand, the Veteran was afforded VA-contracted examinations in April 2017 in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated in pertinent part that he could not find records documenting an evaluation for foot injury while the Veteran was in service. In an addendum VA opinion received in July 2017, the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated in pertinent part that she reviewed the conflicting medical evidence and found that an October 2013 private opinion did not have proper support as the private examiner stated that service treatment records showed treatment for calluses. The VA examiner stated that she reviewed the available service treatment records and saw no evidence of any foot treatment. As previously noted by the Board in the February 2017 remand, service treatment records show a complaint of callus on the ball and toe of the feet in January 1974. Specifically, on January 25, 1974, the Veteran complained of callus on the ball and toe of his feet and treatment was noted as "cut out". As such, the Board finds that an addendum opinion should be sought on remand to address whether is it at least as likely as not that any foot disability diagnosed during the pendency of this claim had its onset during the Veteran's active duty service or is otherwise etiologically related to service, to include his assertions of wearing tight boots while running and marching and his complaints of callus on the ball and toe of the feet in January 1974. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value.) In regards to the other claims on appeal, the Veteran testified in October 2016 that he used drugs to self-treat his foot problems and had to go along with drug use in service or be ostracized. While VA's governing regulations do not permit service connection for issues caused by alcohol and drug abuse, 38 C.F.R. §§ 3.301 (2017), an exception to that regulation is made when the alcohol or substance abuse is secondary to, or a symptoms of, a service-connected disorder. See Allen v. Principi, 237 F.3d 1368, 1377 (Fed. Cir. 2001). As such, the Board finds that the issue of service connection for hepatitis is intertwined with the issues of service connection for bilateral hallux valgus, right plantar callosities, and right hammer toes. Final appellate review of the hepatitis claim is deferred until the intertwined service connection claims are prepared for appellate review (or resolved). Accordingly, the case is REMANDED for the following action: 1. Return access to the electronic claims file to the VA-contracted examiner who conducted the April 2017 examination or to another suitable examiner if this individual is unavailable. Another examination of the Veteran is not required unless deemed necessary by the person providing the requested opinion. The examiner should review the electronic claims file and note such review. The examiner is asked to furnish an opinion with respect to the following: Based on the evidence of record, is it at least as likely as not (50 percent or greater probability) that any foot disability diagnosed during the pendency of this claim to include bilateral hallux valgus, right plantar callosities, and right hammer toes had its onset during the Veteran's active duty service or is otherwise etiologically related to service, to include his assertions of wearing tight boots while running and marching and complaint of callus on the ball and toe of the feet in January 1974. The service treatment records show a complaint of callus on the ball and toe of the feet in January 1974. Specifically, on January 25, 1974, the Veteran complained of callus on the ball and toe of his feet and treatment was noted as "cut out". A complete rationale for this opinion should be provided and include citation to evidence of record, known medical principles, and medical treatise evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 2. If, and only if, a foot disability to include bilateral hallux valgus, right plantar callosities, and/or right hammer toes is found to be etiologically related to service, return access to the electronic claims file to the VA-contracted examiner who conducted the April 2017 examination or to another suitable examiner if this individual is unavailable. Another examination of the Veteran is not required unless deemed necessary by the person providing the requested opinion. The examiner should review the electronic claims file and note such review. The examiner is requested to state whether it is at least as likely as not that the Veteran's drug abuse was caused by or symptoms of a service-connected foot disability. If the examiner finds a connection between the Veteran's service-connected foot disability(s) and his drug abuse, the examiner should state whether it is at least as likely as not that the Veteran's hepatitis was the result of that drug abuse. A complete rationale for this opinion should be provided and include citation to evidence of record, known medical principles, and medical treatise evidence. The examiner is reminded that service-connection is not automatically precluded for a disorder by virtue of alcohol or drug dependency if that dependency was caused by or a symptom of another service-connected disability. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 3. To help avoid future remand, VA must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, undertake corrective action before the matter is returned to the Board. See Stegall, 11 Vet. App. 268. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, before the case is returned to the Board, if otherwise in order. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).