Citation Nr: 20009617 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 16-49 204 DATE: February 5, 2020 REMANDED Entitlement to service connection for a bilateral foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to September 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Board notes additional evidence has been received since the 2016 supplemental statement of the case (SSOC). However, although the Veteran has not waived RO consideration of that evidence, the claim is being remanded for further development; therefore, there is no prejudice in proceeding with the appeal. With regard to the Veteran’s claim for entitlement to service connection for a bilateral foot condition as a residual of the foot procedure done during service, the Board finds an additional VA examination is needed. At a February 2016 VA examination, the VA examiner noted the Veteran had bilateral peripheral neuropathy. The Veteran reported that his feet were numb and that when he was in service, “the bottom of his foot started hurting him and he went to the medic and they just started cutting the foot” and that he was told “this was probably plantar warts.” He also reported he was on crutches for a while and has had ongoing issues since service; it was also noted he had characteristic callouses of the feet. However, the VA examiner noted that while there was documentation of treatment for plantar warts on the right foot, there was no ongoing foot condition noted on the exit exam or following service, and the examiner opined that the current bilateral foot neuropathy is less likely as not a residual of surgical procedures in Vietnam because his records showed the condition was for his right foot and the current complaint is bilateral. Further, he stated that the neuropathy only started within the last several years with no reports of the condition during service. The Board finds this opinion is conclusory and does not consider the totality of the evidence pertaining to the Veteran’s condition, nor did the examiner opine as to whether the plantar warts surgery caused the neuropathy issues. Further, the Board notes that the fact the Veteran’s condition was normal at discharge does not preclude service connection being granted for a post-service condition if it is, in fact, related to the service injury. Additionally, the Board notes that in 2006, the Veteran submitted private treatment records from the 1960s to 2000s which showed an intermittent history of onychomycosis, hyperkeratosis, warts and corn, and foot pain, but this evidence was not indicated as reviewed by the RO in the 2016 rating decision or the 2016 SOC or SSOC. Further, the Veteran testified at the 2019 Board hearing he had private records from his hometown clinic that he had gone to since separation from service that showed his ongoing foot pain. Thus, the Board finds a remand is warranted to obtain any outstanding records, and to request a new examination that discusses the private records in the file and any other records retrieved; the Veteran’s lay contentions and his sworn testimony at the 2019 hearing; his conceded exposure to herbicide agents in service (see July 2013 rating decision); and to provide an opinion as to whether the surgery he had while he was in service at least as likely as not caused the current neuropathy. The matters are REMANDED for the following action: 1. Obtain VA medical treatment records from April 2019 to the present and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for his hometown clinic. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records. 3. DO NOT PROCEED until the above has been completed to the extent possible. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral foot condition. A copy of the claims file, including this remand, must be made available and reviewed by the examiner. The examiner must then opine whether any current foot condition: (a.) is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including the surgery in April 1968 of the removal of plantar warts and/or that he consistently jumped onto hard platforms from helicopters during service; (b.) is at least as likely as not (50 percent or greater probability) related to in-service herbicide agent exposure. The examiner is asked to consider the following evidence when making their opinion: • It is conceded the Veteran was exposed to Agent Orange while he was in service; • The April 1968 service records showing pain in his right foot and the removal of plantar warts with residual pain after; • The 1968 separation medical history report which was marked “no” to foot trouble; • The private medical records showing the Veteran had an intermittent history of onychomycosis, hyperkeratosis, warts and corn, and foot pain between the 1960s and 2000s; • The 2006 private medical record where the Veteran stated he had sore spots on his feet, and when he wakes up in the morning, they bother him a bit. An examination revealed he had mild tenderness across the mid feet; • The VA medical records which showed in 2013 the Veteran complained of pain/numbness on the bottom of his feet; in August 2014 he was seen for a callus on his right foot; in February 2016 he reported numbness and tingling in the soles of both feet and it was noted the Veteran needed neuropathic medication for his feet due to his history of Agent Orange exposure; in November 2016 he reported he had pain and numbness in his feet for many years but it had gotten progressively worse, especially when walking on hard surfaces; • In November 2015, Dr R.E., a VA podiatrist, reported neuropathy and foot pain with calluses, and that the “neuropathy was secondary to Agent Orange exposure;” • In December 2018, a VA neurologist noted the Veteran’s complaints of tingling and numbness in his feet and that he had had infections and calluses and noted that the Veteran had no family history of neuropathy, no diabetic or exposure to chemo, but he did have exposure to Agent Orange; • The February 2016 VA examination where the Veteran reported the pain in service and his issues since service; • The 2019 Board hearing where the Veteran provided sworn testimony that his foot pain was continuous since service; that while in service being on the helicopters, he would jump off the platform onto the deck or ground below; and that in service, he had surgery on his right foot first and they cut his foot up thinking it was plantar warts, and when he had problems again, they performed the procedure again on his other foot. In providing this opinion, the examiner is advised that simply stating the Veteran was normal at separation is not an adequate rationale as service connection can be granted for a condition diagnosed after service if it is related to an in-service disease or injury. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.