Citation Nr: 21005170 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 13-31 155A DATE: January 29, 2021 REMANDED The issue of entitlement to service connection for a right foot disability is remanded. REASONS FOR REMAND The appellant served in the Army National Guard of North Carolina from August 2006 to August 2011, with a period of active duty from July 2007 to November 2007. In May 2017, the appellant testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In June 2020, the appeal was remanded by the Board for further development. For the reasons outlined below, the Board finds that remand is again needed. Entitlement to service connection for a right foot disability. The Board finds that remand is again needed in this matter. First, it appears that there may be VA treatment records outstanding. A VA Form 21-4142a indicates treatment at D. VAMC. See Docket, July 2020. This records request was rejected in July 2020, because the “[p]rovider listed is non-private” and that the request “must be worked via the traditional process.” However, no VA treatment records were subsequently associated with the claim file. Accordingly, the Board remands to obtain these records. In addition, it is unclear to the Board that the appellant has been informed of the status of other records requests. For example, the appellant provided a VA Form 21-4142a for O.F.A. A July 2020 Report of Contact indicates that no records were found. However, the Board cannot find that the appellant was informed of the status of this request. Similar concerns arise for VA Forms 21-4142a submitted for E.A.V. and A.O. Accordingly, upon remand, the Board asks that the appellant be informed of the status of her records requests. In addition, the Board has considered the arguments raised in the appellant’s representative November 2020 brief, particularly regarding the claimed inadequacies of the October 2020 VA examination. Without reaching the merits of the representative’s arguments, the Board finds that a new VA opinion is needed. In the new opinion, the Board asks that the examiner consider the lay statements of record. The Board also seeks clarification regarding whether the appellant’s disability pre-existed service. The Board acknowledges that the October 2020 VA opinion states: “The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” However, the rationale provided for this points to a May 2009 treatment record that “notes foot surgery as a child, no further details of this available from Veteran or from records.” The Board acknowledges the November 2017 VA opinion that indicates pes planus on entrance to active service and that “[t]his would be either congenital or it developed prior to service.” However, the October 2020 VA examination report clarifies that the appellant is not claiming, inter alia, pes planus; rather, “[s]he is claiming pain on the top of her right foot only.” Accordingly, upon remand, the Board asks that a new opinion be obtained that addresses any potential pre-existing disability. The matter is REMANDED for the following action: 1. After securing any necessary consent forms from the appellant, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. The Board notes that a VA Form 21-4142a indicates treatment at D. VAMC. See Docket, July 2020. This records request was rejected in July 2020, because the “[p]rovider listed is non-private” and that the request “must be worked via the traditional process.” However, no VA treatment records were subsequently associated with the claim file. Accordingly, the Board asks that these records be obtained upon remand. In addition, the Board asks that the appellant be informed of the status of her records requests. For example, the appellant provided a VA Form 21-4142a for O.F.A. A July 2020 Report of Contact indicates that no records were found. Similar concerns arise for VA Forms 21-4142a submitted for E.A.V. and A.O. Accordingly, upon remand, the Board asks that the appellant be informed of the status of her records requests and be provided the opportunity to submit records herself. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain an opinion that addresses the following. If necessary, schedule the appellant for an examination. After clarifying the diagnosis, provide an opinion that addresses: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the claimed disability is a congenital defect. If determined to be a congenital defect, is it at least as likely as not that the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. (b) If the diagnosed disability is not a congenital defect, whether it is at least as likely as not that the disability clearly and unmistakably pre-existed service. (c) If there is clear and unmistakable evidence that the claimed disability preexisted service, then the examiner should address whether there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that it was caused by the appellant’s active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). (d) If it is determined that the disability did not clearly and unmistakably preexist service, then the examiner should address whether it is at least as likely as not that it was caused by the appellant’s active duty service. In crafting the opinion, the examiner is asked to address the lay statements of record, including the appellant’s own statements about her claimed disability. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.