Citation Nr: 21006008 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-33 806 DATE: February 3, 2021 REMANDED Entitlement to service connection for a right foot disorder, to include as secondary to the Veteran’s service-connected knee disorders is remanded. REASONS FOR REMAND The Veteran had active duty service in the Navy from December 1973 to April 1976. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in November 2013 and January 2015 for further development. In October 2017, the Board denied the Veteran’s claim for entitlement to service connection for a right foot disability. In July 2018, the U.S. Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR) to vacate and remand the Board’s October 2017 decision. The JMR noted that the Board had erred when it found the duty to assist had been satisfied both as to providing the Veteran with an adequate VA foot examination and as to obtaining the Veteran’s VA treatment records. In an April 2019 decision, the Board remanded the Veteran’s claim for additional development. The case is now again before the Board for further appellate action. Entitlement to service connection for a right foot disorder, to include as secondary to the Veteran’s service-connected knee disorders, is remanded. In the July 2018 JMR, the parties agreed that the Board must request and obtain outstanding VA treatment records contained in the Veterans Health Information System Technology Architecture (VistA) Imaging system, including a record dated April 18, 2014. In April 2019, the Board remanded the Veteran’s service connection claim to the Agency of Original Jurisdiction (AOJ) to obtain outstanding VA treatment records, including all scanned documents contained in the VistA imaging system, and to schedule a new VA examination. The Veteran’s claims file includes an entry for a scanned radiology report, dated April 18, 2014, which was one of the records listed in the July 2018 JMR. However, this record has not been obtained added to the Veteran’s claims file. The April 2019 Board remand did not list the VistA record dated April 18, 2014 as one of the outstanding records. It appears that the Board erroneously listed August 18, 2014, rather than April 18, 2014. A November 2020 deferred rating decision reported that there are no scanned documents contained in the VistA imaging system dated August 18, 2014. In failing to obtain all outstanding VA treatment records, the AOJ has not complied with the Board’s April 2019 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Thus, the Board finds that a remand is warranted for the AOJ to make efforts to obtain the April 18, 2014 VistA imaging record and any other outstanding VA treatment records, and provide an addendum opinion if any outstanding records pertain to the Veteran’s lower extremities. In addition, the July 2018 JMR noted that the October 2017 Board failed to address whether adjudication of the Veteran’s claim by the Pittsburgh RO was proper given the Veteran’s status as a VA employee within the jurisdiction of that RO. The Veteran is employed by the Butler VA Medical Center. The parties agreed that, on remand, the Board should consider the Veteran’s allegation that his claim should not have been adjudicated by the Pittsburgh RO in the first instance, and determine whether the claim should be handled differently or like other claims when it is remanded to the RO. This issue was not addressed in the April 2019 Board decision. The Board notes that it is VA policy that claims brought by VA employees are to be adjudicated by an appropriate Restricted Access Claims Center (RACC). The Pittsburgh RO is not one of the VA’s RACCs. In April 2015, the Veteran requested that the examination of his right foot be completed at the Pittsburgh VAMC, as he was an employee at the Butler VAMC. Thereafter, both the Veteran’s February 2015 and February 2020 VA examinations were conducted by the Pittsburgh VAMC. Nevertheless, to address any potential conflict of interest, the Board directs that, upon remand, jurisdiction of the Veteran’s claim should be transferred to the St. Paul RACC. The matter is REMANDED for the following action: 1. The Veteran’s claim should be transferred to the jurisdiction of the St. Paul RACC. 2. Request and obtain all VA treatment records for the Veteran not already associated with the file, including the April 18, 2014 VistA imaging record of the scanned radiology report. All efforts to obtain these records should be documented, and if the records cannot be located, a formal finding of unavailability should be associated with the Veteran’s claims file. 3. After obtaining all outstanding records, if any of the records are related to the Veteran’s lower extremities, obtain an addendum medical opinion from the examiner who conducted the February 2020 VA examination, if available, or another qualified medical professional. Based on a review of the claims file, including this remand, the examiner is requested to answer the following: (a) Is the Veteran’s right foot disability, to include his right toe, at least as likely as not (50 percent or greater probability) caused by his service-connected knee disabilities (status post left medial meniscus tear and right knee patella femoral syndrome)? The examiner must consider both knees, together, and also separately. (b) Is the Veteran’s right foot disability, to include his right toe, at least as likely as not (50 percent or greater probability) aggravated by his service-connected knee disabilities (status post left medial meniscus tear and right knee patella femoral syndrome)? The examiner must consider both knees, together, and also separately. The examiner should specifically address the Veteran’s contention that his service-connected knee disabilities caused an altered gait that led to his current right foot disability. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the issue sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.