Citation Nr: 21009333 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-32 070 DATE: February 22, 2021 REMANDED Entitlement to service connection for a right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1984 to March 1985, from May 1988 to July 1989, and from December 1990 until her honorable discharge in April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2020, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of her testimony has been associated with the claims file. In April 2020, the Board remanded the case to the RO for further development. Specifically, the Board directed the RO to obtain releases for private treatment records and statements from the Veteran on her periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The RO was also instructed to obtain VA examinations for the right foot disability and a cervical spine disability. The Veteran was sent a subsequent development letter in May 2020 and no response was received. To the extent that information may have been gained to her benefit from her private treatment records, VA made sufficient efforts to obtain the release for private treatment records. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing her claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). A VA examiner then reviewed the Veteran’s file in September 2020 and an addendum opinion was obtained by the RO in October 2020. The RO subsequently granted the Veteran’s cervical spine claim in an October 2020 rating decision. This rating decision represents a total grant of benefits sought on appeal for this issue. As such, this issue is considered resolved in full and is no longer before the Board. However, the Veteran’s representative included an increased rating claim in the post remand brief. If their intent is to challenge the initial rating, they are free to do so consistent with the appeal rights from the October 2020 notification letter. Entitlement to service connection for a right foot disability. The Veteran acknowledges that she injured her right foot prior to active duty service but stated at her hearing that she did not have a right foot disability before entering service. She believes that her right foot disability occurred during a period of service or was aggravated by her military service. See Notice of Disagreement. The Veteran also testified at her hearing that she injured her right foot in 1983 or 1984. Her service treatment records reflect treatment for right foot tenderness in May 1983 and state that she broke her right foot in February 1983. This was a period where the Veteran was serving in the Army Reserves. See Military Personnel Records. The Veteran’s assertions are supported by her service treatment and military personnel records in connection to the timing of the injury and that she was in the Army Reserves. The RO has a duty to assist the Veteran in developing her claim. While the Veteran has a responsibility to assist the VA with development, here the VA has all the information it needs to appropriately develop this claim. The Veteran has provided statements concerning the injury and her recollection as to when the injury took place at her hearing. She believes it could have been in 1983 or 1984. The service treatment records report that the injury took place in February 1983. The Veteran’s military personnel records indicate that she was service in the Army Reserves at that time. The RO must now attempt to determine if the Veteran was injured during a period of ACDUTRA or INACDUTRA between February 1983 and December 1983 or whether her active duty service aggravated her right foot disability. It is unclear, however, whether she was serving on ACDUTRA or INACDUTRA in February 1983 when her right foot was reportedly injured. It is thus incumbent upon VA to ensure that it has a complete record of these periods. Additionally, the RO did not obtain records showing the actual dates of the Veteran’s periods of ACDUTRA or INACDUTRA. On remand, the RO should thus make appropriate efforts to identify all periods of ACDUTRA and INACDUTRA as well. 38 C.F.R. § 3.159(c)(1)-(2). The matter is REMANDED for the following action: 1. After obtaining appropriate authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records related to the Veteran’s claims. 2. Thereafter, contact the appropriate service organization, attempt to verify and enumerate relevant periods of “active military service” between February 1983 and December 1983, to include relevant confirmed periods of ACDUTRA and INACDUTRA. This enumeration must be clear (noting the month, day, and year) and should consist of more than simply the Veteran’s pay periods or retirement points. 3. Next, attempt to verify that all the Veteran’s service personnel records from the relevant period of February 1983 to December 1983 of ACDUTRA or INACDUTRA service are obtained and associated with the claims file. Any negative response must be documented in the claims file, in which case the Veteran and her representative must be notified that these records cannot be located and given an opportunity to respond. (Continued on the next page)   4. After the above development is completed, obtain an addendum opinion with an appropriate examiner to determine the nature and etiology of her right foot disability. The Veteran’s claims folder and a copy of this remand should be furnished to the examiner, who should indicate in the examination report that they have reviewed the claims folder in its entirety. A VA examination will be provided if the examiner deems it necessary. 5. The examiner is then asked to opine as to whether it is at least as likely as not (50 percent or greater probability) that any current right foot disability was caused by or otherwise etiologically related to any injury during a period of active duty service, ACDUTRA or INACDUTRA. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider the Veteran’s lay statements regarding the nature and onset of her right foot disability. The examiner must not attempt to weigh any lay statement, but may clarify whether any such statements are medically-consistent or medically-inconsistent with the medical evidence of record. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.