Citation Nr: 1817652 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-34 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Brant, Counsel INTRODUCTION The Veteran served on active duty from January 2003 to May 2004. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. In July 2016, the Veteran filed a claim for entitlement to service connection for a bilateral foot disability. In a December 2016 rating decision, the RO indicated that the claim for a bilateral foot disability was already on appeal and would be addressed in a separate decision. However, the Board finds that only a claim for entitlement to service connection for a right foot disability is currently on appeal. As such, the Board refers the claim to reopen the previously denied claim for entitlement to service connection for a left foot disability to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his right foot pain began during his year-long tour in Iraq as a result of his duties in motor transport driving a variety of heavy trucks and maintaining foot pressure on the gas pedal to stay at maximum speed for several hours at a time. He contends that his right foot pain has continued since this time. The Veteran's Department of Defense Form 214 shows his military occupational specialty as motor transport and indicates receipt of a Driver and Mechanic badge with Driver-W Bar. Service treatment records are silent regarding complaints of, treatment for, or diagnoses of, right foot pain. In an April 2004 report of medical history, the Veteran denied foot trouble. Examination at that time revealed normal foot arches. The Veteran acknowledges that he did not visit sick call for his right foot pain, noting that his unit was always on the go and there was no "real" sick call to visit. However, he contends that his fiancée at the time would massage his foot at night to relieve the pain. In a July 2012 buddy statement, the Veteran's fiancée/spouse corroborated his reports of right foot pain during service treated with massage. In a December 2015 buddy statement, a fellow soldier also corroborated the Veteran's reports of right foot pain during service from driving heavy loads for long hours. The post-service medical evidence shows complaints of right foot pain beginning in November 2011. In a November 2011 VA treatment record, the Veteran complained of right foot pain located in the arch for one year. He denied any trauma. In a February 2012 VA treatment record, the Veteran complained of right foot pain since 2004. The assessment was minor bunion and plantar fasciitis. In a private medical record dated in October 2014, Dr. L. C. diagnosed hallux valgus, pes planus, acquired equinus deformity of foot, and plantar fasciitis on the right. In a September 2015 VA examination, the Veteran reported that while in the Gulf War, his duty was driving a truck for long hours at a time. He noted that he was diagnosed with a contusion and was still having intermittent pain. The examiner noted a diagnosis of contusion of the left foot. The examiner indicated that there was no right foot pain on examination. The examiner indicated that he was unable to find a report of a right foot problem/injury in the service treatment records. The examiner therefore found that the right foot contusion was less likely than not related to a specific exposure event experienced by the Veteran during his service in Southwest Asia. The examination report does not adequately address the Veteran's complaints regarding his right foot or the other right foot diagnoses of record, to include hallux valgus, pes planus, or plantar fasciitis. Moreover, the opinion appears to solely rely on the absence of treatment for right foot problems during service and does not address the Veteran's contentions regarding how he injured his foot during service. In a Disability Benefits Questionnaire completed by a private physician in December 2015, the examiner diagnosed bilateral plantar fasciitis. The examiner noted that the Veteran had a one month history of bilateral arch foot pain. The examiner did not provide an etiology opinion. In October 2016, the Veteran submitted private treatment records from J. C., a Doctor of Podiatric Medicine. On the initial visit in April 2016, Dr. J. C. noted the Veteran complained of severe to moderate pain in the right plantar aspect of the foot. He noted that the Veteran admitted having the problem for years which became worse over time. He noted that the Veteran received treatment for this same problem while on active duty in the military. Dr. J. C. noted that the military medical records were reviewed, which indicated he was diagnosed with hallux valgus (bunions), pes planus, and plantar fasciitis in both feet, with a possibility of heel spurs being discussed. In a subsequent October 2016 treatment record, Dr. J. C. stated that the Veteran "was informed by me that in my opinion 'more likely than not', performing his duties while deployed, was the initiating event that has been accentuated by normal daily activities." The Board has some concerns with the rationale provided for this opinion. First, although the examiner noted that the Veteran received treatment for a right foot problem during service, there is no documentation of treatment during service. In fact, the Veteran acknowledged that he did not visit sick call during service but received foot massages from his fiancée to alleviate the pain. Second, although the examiner indicated that the "military medical records" indicated the Veteran was diagnosed with hallux valgus, pes planus, and plantar fasciitis, as noted above, the service treatment records did not contain any diagnoses of a right foot condition. It is not clear from his statement whether the examiner was aware that the post-service VA treatment records noting these diagnoses were not actually recorded during the Veteran's active duty service. In light of the foregoing and under the duty to assist, the Veteran should be afforded another examination to determine the nature and etiology of any currently diagnosed right foot disability. While on remand, updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently diagnosed right foot disability. All necessary tests and studies should be accomplished and all complaints and clinical manifestations should be reported in detail. The entire claims file, including a copy of this remand, should be reviewed in conjunction with the above evaluation. The examiner should: (a) Identify any currently diagnosed right foot disability. (b) Determine whether it is at least as likely as not (50 percent probability) that any currently diagnosed right foot disability was caused by, or is otherwise related to, the Veteran's active duty service, to include from his duties in motor transport driving heavy trucks and maintaining foot pressure on the gas pedal to keep at maximum speed for several hours at a time. A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. After completing the above development, and any additional development deemed necessary, readjudicate the claim. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative after according the requisite time to respond. The matter should then be returned to the Board for appropriate appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL LANE 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).