Citation Nr: 1806053 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-20 675A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for a right foot/ankle disability other than pes planus, to include as secondary to service-connected bilateral pes planus. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from February 1993 to February 1997. This appeal before the Board of Veterans' Appeals (Board) arose from a November 2012 rating decision in which the RO, inter alia, denied service connection for right tarsal tunnel syndrome, postoperative (also claimed as nerve damage and loss of feeling in right foot). The Veteran filed a notice of disagreement (NOD) later in November 2012. A statement of the case (SOC) was issued in April 2014, and the Veteran submitted a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in June 2014. In August 2017, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is of record. Regarding characterization of the issue on appeal, in light of the Veteran's reported symptoms and contentions and the fact that service connection has already been awarded for bilateral pes planus, the Board has characterized the claim as set forth on the title page. See generally Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms described and the information submitted or developed in support of the claim). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. For reasons expressed below, the matter on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveal that further action on the claim on appeal, prior to appellate consideration, is warranted. The Veteran contends that he has a current right foot/ankle disability other than pes planus which is related to his physical activities in service (e.g., running and marching) and right ankle injuries that were sustained in service. In particular, service treatment records dated from August 1995 to October 1996 document various instances of treatment for right foot blisters and right ankle sprains. In the alternative, the Veteran contends that his disability is associated with his service-connected pes planus. VA ankle and neurological examinations were conducted in January and October 2012 and the Veteran was diagnosed as having right tarsal tunnel syndrome. The physician who conducted the October 2012 examination opined that the disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner noted that tarsal tunnel syndrome can be caused by many different factors and concluded that there was not greater than a 50 percent probability that the Veteran's tarsal tunnel syndrome was caused by an ankle sprain sustained in service, but no further explanation or rationale was provided for the opinion. The October 2012 opinion is deficient because the examiner did not provide any specific explanation or rationale for why the Veteran's right tarsal tunnel syndrome is not related to service, other than to note that the disability can be caused by many different factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). See also Barr v. Nicholson, 21 Vet. App. 30 (2007) (holding that once VA undertakes the effort to provide an examination or obtain medical opinion, it must ensure that one is provided or obtained that is adequate for the determination being made). Hence, the Board finds that a remand is necessary to obtain an addendum medical etiology opinion-preferably, from the examiner who conducted the October 2012 VA examination-that is supported by a complete, clearly-stated rationale, to include identification of the evidence and/or medical authority relied upon. The AOJ should only arrange for the Veteran to undergo further examination, by an appropriate physician, if deemed necessary in the judgment of the individual designated to provide the addendum opinion. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may result in denial of his claim. See 38 C.F.R. § 3.655 (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake additional notification action, as well as appropriate development action to obtain and associate with the claims file all outstanding, pertinent records. The Board points out that, although the Veteran has been notified of the evidence and information required to substantiate a claim for service connection on a direct basis, he has not been provided adequate notice pertaining to the evidence and information required to substantiate a claim for service connection on a secondary basis. Thus, such notice should be provided upon remand. The AOJ should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal (particularly as regards any private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In particular, the Veteran reported on an October 2011 "Authorization and Consent to Release Information" form (VA Form 21-4142) that he received relevant treatment from Dr. Thompson, Dr. Kholer, and Dr. Bodamer. A review of the claims file indicates that while some of these identified treatment records have been submitted, the Veteran's complete treatment records from these treatment providers have neither been requested nor obtained. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Send the Veteran a letter that provides notice as to the information and evidence that is required to substantiate a claim for service connection a secondary basis. A copy of this letter must be included in the file. 2. Furnish to the Veteran a letter requesting that he provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide appropriate authorizations to obtain his complete treatment records for a right foot/ankle disability from Dr. Thompson, Dr. Kholer, and Dr. Bodamer, as referenced above. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, arrange to obtain from the VA examiner who conducted the October 2012 VA examination an addendum opinion addressing the etiology of any current right right/ankle disability other than pes planus. If that individual is no longer employed by VA or is otherwise unavailable, document that fact in the file, and arrange to obtain a medical opinion from another appropriate physician based on claims file review (if possible). Only arrange for the Veteran to undergo further examination, by an appropriate physician, if one is deemed necessary in the judgment of the individual designated to provide the addendum opinion. The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager)), to include a complete copy of the REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran's documented medical history and lay assertions. Based on a review of all pertinent lay and medical evidence, the physician should clearly identify any right foot/ankle disability(ies) other than pes planus present at any time since approximately August 2011 (even if now asymptomatic or resolved). Then, with respect to each diagnosed right foot/ankle disability other than pes planus, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (a 50 percent or greater probability) that the disability (a) had its onset during service; (b) for arthritis or an organic disease of the nervous system, had its onset during the first post-discharge year following the Veteran's February 1997 separation from service; (c) is related to the Veteran's right foot/ankle problems and/or physical activities in service; or (d) is otherwise medically-related to the Veteran's service. If the physician determines that a currently diagnosed right foot/ankle disability other than pes planus is not related to the Veteran's military service, the physician should also provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability (a) was caused OR (b) is, or has been, aggravated (worsened beyond natural progression) by the Veteran's service-connected bilateral pes planus. If aggravation of any current right foot/ankle disability other than pes planus is found, for each, the physician should attempt to quantify the extent of disability resulting from aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to aggravation. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence of record and all lay assertions-to include all reports of and instances of treatment for right foot and ankle problems in the Veteran's service treatment records and his contention that his claimed disability is related to physical activities (e.g. running, marching) in service. Notably, when addressing the relationship between a diagnosed disability and service, the absence of evidence of diagnosis of and/or treatment for specific right foot/ankle problems during service should not, alone, serve as the sole basis for a negative opinion. In this regard, the physician is advised that the Veteran is competent to report his symptoms and history, and that lay assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached-to include identification of the evidence and/or medical authority relied upon-must be provided. 5. To help avoid future remand, ensure that all requested 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, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for a right foot/ankle disability other than pes planus in light of all pertinent evidence (to particularly include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication of the claim in April 2014), and all legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran a supplemental SOC (SSOC) that includes discussion of the reasons and bases for all determinations, and afford him an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).