Citation Nr: 18155590 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 12-11 324A DATE: December 4, 2018 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1964 to December 1967. The Board notes that, initially on appeal as well, was the issue of service connection for tinnitus. However, this claim was granted during the course of this appeal and, as such, represents a full grant of the benefits sought. Thus, that claim is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board also notes that in May 2018, the Board sought a Veteran’s Health Administration (VHA) medical opinion to determine the etiology of the Veteran’s asserted neck and bilateral foot condition. In June 2018, a responding opinion was received and the Veteran was given sixty days to review the opinion and present new evidence. The Veteran was also advised of his right to have any new evidence submitted, initially considered by the AOJ, or the Veteran could waive his right to initial review. Although the Veteran submitted a response without denoting his choice of initial consideration by the AOJ or waiver, the Board finds the written statements submitted are duplicative and already of record. Thus, a waiver of AOJ review is not necessary. To that end, while the Board may proceed with adjudication of the Veteran’s claims, the Board has thoroughly reviewed the evidence and finds that a remand is necessary as further development is warranted before the Board can proceed with adjudication. Bilateral Foot Disability The Veteran is seeking service connection for a bilateral foot disability contending that his current conditions were caused by service. Specifically, the Veteran contended that while in service he wore shoes that were too small and had to cut the sides out of the shoe with a razor blade so that his feet would fit. He reported having constant blisters and calluses from the shoes not fitting as they should. A review of the evidence shows that the Veteran was treated for his right foot while in service. Post-service records show the Veteran received an examination in October 2016 for his bilateral foot condition. The examiner diagnosed the Veteran with hammer toes, hallux valgus, pes cavus, degenerative arthritis, and neuropathy, all bilaterally. In a subsequent November 2016 medical opinion, the examiner found that the Veteran’s bilateral pes cavus was not related to service given that pes cavus was not listed at enlistment or separation, and was not diagnosed until years later. The examiner further noted that pes cavus is usually hereditary. As noted previously, the Board sought a VHA opinion in May 2018. In a June 2018 responding opinion, the examiner found that the Veteran’s diagnosed bilateral neuropathy and pes cavus was less likely than not related to service. In so finding, the examiner noted that the Veteran did not have these conditions on his enlistment or separation exams. Additionally, the examiner noted that there is clear documentation of the development of a hereditary polyneuropathy which is most likely responsible for his subsequent foot pathology. In reviewing the evidence, the Board notes that despite the June 2018 examiner’s findings, the evidence of record has not definitively found that the Veteran’s polyneuropathy is hereditary in nature. This is evidenced in a September 1998 treatment note in which the physician noted that the Veteran has polyneuropathy of unknown etiology. He further noted that while the etiology is unknown, the diagnosis of pes cavus raises the possibility of a hereditary neuropathy. Additionally, in the November 2016 medical opinion for the Veteran’s bilateral foot condition, the examiner noted that the Veteran was diagnosed with polyneuropathy of unknown etiology and there is some question as to whether this could be hereditary in view of the diagnosed pes cavus. However, this was not confirmed. The examiner further noted that the Veteran reported being exposed to numerous chemicals during his service while working on planes and ships, and it is known that sensory polyneuropathy can occur with exposure to various chemicals, although it is impossible to establish a definite connection between chemical exposure and his latter development of sensory polyneuropathy. Notably, in a May 2009 written correspondence, the Veteran reported that his feet were exposed to JP5 fuel, chemicals from bombs, and other contaminates. In a March 2016 Statement in Support of Claim, the Veteran also reported being exposed to dioxin and possibly agent orange. Given the correlation of neuropathy and hazardous chemicals provided by the November 2016 examiner, and the Veteran’s contentions with respect to being exposed to hazardous chemicals in service, the Board finds a new examination and opinion is warranted. The Board also notes that both the November 2016 and June 2018 examiners relied on the absence of a foot diagnosis in service in rendering their opinions which renders their opinions inadequate in this regard. Further, the November 2016 examiner did not review the Veteran’s medical record prior to rendering his opinion, which also renders the opinion inadequate. Moreover, neither examiner provided an opinion as to the Veteran’s remaining diagnosed bilateral foot conditions, to include hammer toes, hallux valgus, pes cavus, or degenerative arthritis. As a result, a new examination and opinion is warranted to consider the Veteran’s complete medical history, his reports of pain, numbness, and exposure to chemicals, and all currently diagnosed foot conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Finally, the Board notes that in his March 2016 Statement in Support of Claim, the Veteran also reported having foot surgery in California; however, these records are not of evidence. On remand, the AOJ should seek to obtain these records as they may be relevant to the Veteran’s claim. Cervical spine With regard to the Veteran’s claim for a neck disability, a review of the record shows that there appears to be outstanding VA treatment records. Specifically, in the Veteran’s May 2012 Statement of the Case (SOC), the RO referenced treatment records from July 2009 to March 2012 which revealed a neck injury during a furlough weekend while the Veteran was on active duty service. While there are some treatment records of evidence between the afore-mentioned dates, the records appear to be incomplete. Further, there is no medical record of evidence that refers to a neck injury while on furlough. As a result, remand is warranted to obtain the Veteran’s outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain any outstanding VA medical records not already of record relating to the claims. 2. Ask the Veteran to identify any treatment received from private providers related to his neck and right or left foot disabilities. The AOJ should undertake appropriate development to obtain any outstanding private treatment records. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. 3. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, the Veteran should be afforded a VA examination with a Podiatrist to determine the nature and etiology of the Veteran’s bilateral foot disabilities. The claims file, including a copy of this remand, must be made available to, and reviewed by the examiner. Any indicated studies should be performed. The VA examiner should offer the following: a) First identify all currently diagnosed foot disabilities to the Veteran’s right and left foot. b) For each identified disability, provide an opinion with supporting rationale as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a right or left foot disability etiologically related to service, to include as due to exposure to hazardous chemicals? 4. Schedule the Veteran for a VA examination to determine the nature and etiology of his neck disability. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s neck disability is etiologically related to service? The Veteran’s lay statements should be considered in the rendered opinions. The examiner(s) should set forth all examination findings and a complete rationale for any opinion expressed should be provided. If the examiner(s) determine that he or she is unable to provide the requested opinion without resort to speculation, the examiner(s) must provide a reasoned explanation for such conclusion. 5. Then, readjudicate the claims. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond before the case is returned to the Board. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel