Citation Nr: 21003595 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-03 695 DATE: January 22, 2021 REMANDED Entitlement to service connection for neuropathy is remanded. Entitlement to service connection for residuals of foot injury other than neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1, 1983 to August 25, 1983. This matter comes before the Board from a December 2015 rating decision. The Veteran filed a notice of disagreement (NOD) in March 2016, a statement of the case (SOC) was issued in December 2016 and he perfected this appeal in January 2017. In September 2019 he appeared at a hearing before the undersigned Veteran’s Law Judge. A copy of the transcript is in the claims folder. 1. Service connection for neuropathy is remanded. The Veteran contends that service connection is warranted for neuropathy alleged to be caused by a foot injury in basic training. Neuropathy affecting the lower extremities and feet, as well as the bilateral hands, is shown in post service treatment records but they do not disclose a cause. It is noted that attempts to obtain service treatment records have been unsuccessful. See Reserve STR received 10/7/15 outlining attempts to obtain records; see also VA 21-3101 received 10/19/15 and DPRIS response received 10/19/15 outlining further unsuccessful attempts to obtain records. In his September 2019 hearing he testified that he sustained injuries to his feet in basic training and he was instructed to jump into a 55-gallon barrel while wearing new boots. The boots got wet and then he did a ten-mile forced march in them. He testified that he had to be placed on light duty for two days afterward. He indicated that was the only injury he’s had to his feet in his whole life and speculated that this injury might be the cause of his neuropathy which he said began about seven to ten years ago. He indicated that his doctors can’t figure out the cause of his neuropathy. Furthermore, in his hearing testimony he has alleged that he is in receipt of Social Security disability benefits, with neuropathy a major cause of this. Because potentially pertinent Social Security records are in the VA’s constructive possession, but have not yet been obtained and have not yet been associated with the claims file, a remand based on this pre-decisional duty to assist error is warranted to obtain the outstanding, relevant SSA records. Additionally, it is noted that in light of the missing service treatment records, VA has a heightened duty to assist the Veteran in development of his claim. See O’Hare v. Lewinski, 1 Vet. App. 365, 367 (1991). The AOJ has yet to formally inform the Veteran regarding the lack of availability of his service treatment records, specifically regarding the alternative forms of evidence that can be developed to substantiate the claim. As such, further AOJ action in this regard is warranted. Furthermore, in light of this heightened duty, plus the Veteran’s lay testimony of a foot injury during basic training, a VA examination should be obtained addressing the etiology of his claimed neuropathy. 2. Service connection for residuals of foot injury other than neuropathy is remanded. The Veteran also seeks service connection for residuals of a foot injury other than neuropathy. Although his testimony does not describe a specific foot disorder aside from neuropathy, and a non-neuropathic foot disorder is not shown in post service records, he alleged having foot pain after the forced march incident in basic training and the RO has adjudicated a foot disability separately from the neuropathy claim. For the reasons described above when addressing the neuropathy claim, the Board finds it necessary to remand this matter to address the heightened duty to assist in light of unavailable STRs, and to obtain SSA records and VA examination to address the etiology of any claimed foot disorder other than neuropathy. The matters are REMANDED for the following action: 1. Provide notice informing the Veteran of the lack of availability of his service medical records, and specifically regarding the alternative forms of evidence that can be developed to substantiate the claim. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Thereafter, following the above development, schedule the Veteran for a VA examination for his claimed neuropathy impacting his lower extremities and any foot disability other than neuropathy. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Does the Veteran have any disability of neuropathy impacting his lower extremities including left foot and right foot and/or any non-neuropathic foot disability? The examiner should be mindful that any functional impairment due to pain is considered a disability for VA purposes. Is any disability identified above at least as likely as not related to service, including his lay reported training incident in during active duty involving a 10 mile march in wet boots? All opinions should be accompanied by a clear rationale that accounts for the evidence of record. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Eckart 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.