Citation Nr: 1820909 Decision Date: 04/06/18 Archive Date: 04/16/18 DOCKET NO. 13-01 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter comes to the before the Board of Veteran's Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board remanded the matter in September 2013 for additional development. In February 2015, the Board denied the Veteran's appeal. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court vacated the 2015 Board decision and remanded the matter on appeal for further. In April and October 2017, the Board remanded the matter for medical examinations and opinions. The matter now returns for further review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds a remand is necessary in this matter for further evidentiary development. 1. Service Treatment Records The Board finds that in this case, VA's duty to assist in the development of the claim has not been satisfied, as it appears that the RO has not obtained all of the relevant service treatment records. Here, the Veteran's service treatment records (STRs) indicate the Veteran was seen in the podiatry clinic on March 4, 1966 and was sent for an X-ray. However, upon review of the record, this x-ray is not of record. Notably, the Veteran reported in his Notice of Disagreement and substantive appeal that there were missing STRs. Thus, on remand a specific request to obtain the March 1966 X-ray of the Veteran's foot and additional should be requested. The Secretary has a duty to assist the Veteran in obtaining evidence necessary to substantiate his claim; including making reasonable efforts to obtain all potentially relevant records that the Veteran adequately identifies and authorizes the Secretary to obtain. See 38 U.S.C. § 5103A(a)(1), (b)(1); Moore v. Shinseki, 555 F.3d 1369, 1372-75 (Fed. Cir. 2009). 2. VA Examinations In the October 2017 Board remand, the Board found that the May 2017 VA examiner's opinion was inadequate because the examiner's opinion was based on the absence of the Veteran having a disability in service, it provided no rationale for the opinion provided, and it failed to address evidence added to the record. See May 2017, C&P Multiple Examination, DBQ for Foot Conditions. Upon review of the new examination accomplished in November 2017, it too is inadequate. Pursuant to the Board remand, the November 2017 VA examination opinion addressed the Veteran's current foot disabilities (including gout, hammer toes, and peripheral neuropathy) and determined that these conditions were not etiologically related to the Veteran's active service because the Veteran was not diagnosed with these conditions while in service. However, the November 2017 VA examiner did not address whether these conditions were related to the Veteran's complaints of foot pain during service and whether there was evidence of a chronic foot condition since active service. Notably, the November 2017 VA examiner stated that gout was a form of arthritis, and opined that it was not etiologically related to the Veteran's active service because "there was no eviden[c]e of gout in the STR." See C&P Examination Consult Foot Conditions DBQ. Next, the Veteran provided statements that he was treated for right foot problems during service and has continued to have problems with his foot pain since active service. See VA Form 21-4138, Statements in Support of Claim from January 2012 and April 2012; VA Form 9. The Board finds the Veteran's statements of an in-service injury are consistent with the places, types, and circumstances of the Veteran's service. 38 U.S.C. § 1154(a). Specifically, the Veteran's STRs confirm that the Veteran was seen in the podiatry clinic on March 4, 1966, and was sent for an X-ray. The next podiatry clinic note in the Veteran's STRs was from April 18, 1966, which indicates that the Veteran was "given papers for exchange of foot gear." Seven days later, on April 25, 1966, the Veteran returned to the Dispensary and while he was released to duty he was given restrictions. Id. Notably, this medical entry did not state that it was related to the Veteran's foot, but it is consistent with the Veteran's statements. Given such, we find the Veteran to credible as to this report, where it is consistent with the circumstantces of his service. See 38 U.S.C. § 1154(a). As such, because the Veteran's statements that he was treated for foot pain while in service are corroborated by his STRs, the Board finds that the record does not contain a medical opinion that addresses the Veteran's lay statements of a chronic foot condition since service. Furthermore, the November 2017 VA examiner's opinion is inadequate because the VA examiner did not address the Veteran's lay statements regarding his treatment for foot pain and chronic nature of foot pain since active service - continuity of symptomatology. As noted above, the Veteran has continued to maintain that he was treated for foot pain during service. The Veteran's STRs confirm that was treated for foot pain on at least three occasions. However, the November 2017 VA examiner does not reconcile the Veteran's statements with the May 2017 VA examiner's opinion that the Veteran was only seen in the podiatry clinic once during service. See Dalton v. Nicholson, 21 Vet. App. 23, 27, 39 (2007) (finding that an examiner improperly failed to discuss the Veteran's lay statements). Therefore, the VA examiners' opinions are inadequate because they do not address the Veteran's lay statements of chronic foot pain in service as well as since service. Based on the above, a remand is warranted for a new medical etiology and nexus opinion for the Veteran's foot disabilities, which is based on a full review of the record including consideration of the Veteran's statements of chronic foot pain since service and supported by stated rationale. See 38 U.S.C. § 5103A (2002); 38 C.F.R. § 3.159 (2017); McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran that are not in the current record and associate with the claims file since May 2017. 2. Perform a search for any outstanding STRs to include the March 1966 foot X-ray. A specific request should be made for a copy of the Veteran's foot X-ray taken March 1966. The RO should document all efforts to obtain this X-ray report, including any negative responses. If the X-ray report cannot be obtained, notify the Veteran and offer him an opportunity to provide it. 3. After completing the foregoing development, provide the entire claims file (including this Remand decision) to a new examiner If the examiner(s) determines that an opinion(s) may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination(s). Any clinically indicated testing and/or consultations should be performed. THE EXAMINER SHOULD NOTE THAT OPINIONS PROVIDED IN THE NOVEMBER AND MAY 2017 EXAMINATIONS ARE INADEQUATE AND SHOULD NOT BE RELIED UPON. The examiner is requested to address the following: (a) Identify any currently present right foot disability(s), including any evidence relating to gout, hammer toes, and peripheral neuropathy, and including all orthopedic and neurological aspects of a disability. For any foot disability identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran's active service, to include complaints and treatment of foot pain beginning in March 1966? Please provide the opinion AND the rationale. (b) Whether the Veteran's documented in-service injury and treatment for foot pain were early manifestations of his current foot disability(s)? See STRs March 4, 1966, April 18, 1966, and April 25, 1966. Please provide the opinion AND the rationale. (c) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of his separation from service. Please provide the opinion AND the rationale. In forming his or her opinion, the VA examiner is asked to explicitly consider in the rationale portion of the opinion, the Veteran's lay statements and all other relevant evidence regarding each foot disability, and comment specifically on whether the Veteran's statements and all other relevant evidence make sense from a medical point of view. This includes the Veteran's account of experiencing chronic pain ever since reporting a foot injury during active service and receiving treatment for foot pain including being seen in the podiatry clinic. The examiner should note that the Veteran's statements that he was issued ill-fitting boots which led him to seek treatment for complaints of foot pain are credible. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If utilizing references within the electronic claims file, the examiner should clearly provide an identifier. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 5. After completing all indicated development, reajudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. 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 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).