Citation Nr: 20050737 Decision Date: 07/30/20 Archive Date: 07/30/20 DOCKET NO. 17-03 845 DATE: July 30, 2020 REMANDED Entitlement to service connection for a bilateral foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1972 to October 1975. In March 2020, the Veteran testified at a live conference hearing before the undersigned. A transcript of the hearing is associated with the claims file. As an initial matter, the residuals from cold weather injury to feet issue has been recharacterized given the nature of the Veteran’s claim. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Entitlement to service connection for a bilateral foot condition is remanded. Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. First, the Veteran testified his service treatment records (STRs) were destroyed; however, there is no such finding in his claims file. Nonetheless, the Veteran’s claims file contains scant service records for the Veteran’s three years of service; the documents labeled “STR” in the file contain only the Veteran’s enlistment examination, separation examination, and a few “routine” tests taken in the month before separation. See April 2014 STR. There are no actual “treatment” records for the duration of the Veteran’s service. As there is a possibility that pertinent STRs are extant and are not associated with the file, a remand is necessary to afford the Agency of Original Jurisdiction (AOJ) an opportunity to obtain and associate these records with the claims file. Second, a remand is warranted as the evidence indicates that there may be relevant post-service medical records not associated with the claims file. Specifically, the Board notes that the March 2014 rating decision and the December 2016 statement of the case (SOC) refer to medical records from Bay Pines VA Medical Center (VAMC) from March 2005 to November 2016, which are not a part of the Veteran’s claim file. Further, there is no indication that any requests for such records have been made. As such, a remand is necessary to ensure that all relevant medical records have been obtained and associated with the electronic claims file. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see Bell v. Derwinski, 2 Vet. App. 611 (1992); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Lastly, the Board notes that the Veteran has not been afforded a VA examination with respect to his current claim of service connection for a bilateral foot condition. VA’s duty to assist includes providing a medical examination when it is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, although the Veteran’s available STRs are silent as to any complaints or treatment for any foot injuries, the Veteran credibly testified that while in service, he had water in his boots during service in Fort Hood, Texas and in Germany, and his feet hurt. See March 2020 Hearing Transcript. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Furthermore, as discussed above, complete STRs may be missing.) The Veteran also testified as to current foot pain. Moreover, an April 2020, provided by B.M. who asserted that he had been the Veteran’s immediate supervisor for the previous eight years, relayed that the Veteran needed to take breaks to care for his feet from an ailment that occurred during the Veteran’s time in the military. As there is evidence in the file indicating an event in service, current symptomatology, and an indication that the condition may be related to service, but there is insufficient evidence of record for the Board to decide the claim, remand for an examination and etiology opinion is warranted. See McLendon, 20 Vet. App. at 83-86; Locklear v. Nicholson, 20 Vet. App. 410 (2006). In sum, a remand is warranted to allow the AOJ to obtain STRs, as well as missing medical records, and to provide the Veteran with an examination to determine the nature and etiology of his bilateral foot condition. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify any relevant medical records. Thereafter, with the Veteran’s assistance as appropriate, obtain and associate with the Veteran’s electronic claims file the entirety of the Veteran’s service treatment records, and post-service treatment records, including records from Bay Pines VAMC from May 2005 to November 2016. All attempts to obtain these records pursuant to 38 C.F.R. § 3.159(c) must be documented. 2. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot condition. The claims file should be made available to the examiner for review in connection with the examination. Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a.) Obtain the Veteran’s lay history, including onset and progression of symptomatology of his bilateral foot condition. (b.) Identify any currently diagnosable condition associated with the Veteran’s bilateral foot condition. If the Veteran does not have a diagnosable foot condition, but has pain only, determine whether that pain causes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (c.) For each diagnosed condition (to include pain that causes functional loss), is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s bilateral foot condition had its onset in or is related to service, to include from water in his boots during service? The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner should address the Veteran’s March 2020 hearing testimony and lay statements concerning pain associated with his feet, as well as the April 2020 buddy statement from B.M. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. The examiner must provide the rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.