Citation Nr: 23015347 Decision Date: 03/14/23 Archive Date: 03/14/23 DOCKET NO. 19-00 375A DATE: March 14, 2023 REMANDED Entitlement to service connection for bilateral foot impairment (feet injury) is remanded. REASONS FOR REMAND The Veteran had active service in the Army National Guard from March 1986 to July 1986. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 Regional Office (RO) rating decision. In that rating decision, the RO denied service connection for feet injury, bilateral foot impairment. In July 2018, the Veteran filed a notice of disagreement (NOD), and in September 2018, the RO issued a statement of the case (SOC). In January 2019, the Veteran filed a VA Form 9, substantive appeal to the Board. In December 2022, the Veteran was notified that he was scheduled for a Board hearing with a Veterans Law Judge for February 3, 2023. See December 2022 Hearing Related. Unfortunately, the Veteran was a no-show for the scheduled hearing. The hearing request is deemed withdrawn because the appellant failed to report and no request for postponement has been received. See 38 C.F.R. § 20.704. 1. Entitlement to service connection for bilateral foot impairment (feet injury) The Veteran contends that his bilateral foot impairment is a result of his active service. In the July 2018 notice of disagreement, the Veteran's former representative stated that his medical records show that he has a diagnosis of cavus deformity of foot. The representative asserted that the Veteran's treating physician determined that his foot deformity is congenital and, thus, the representative stated that his pre-existing bilateral foot condition was aggravated by service. Notably, a medical opinion from any of the Veteran's treating physicians is not of record. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, "[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, despite the statement from the Veteran's representative noted above, and the RO's assertion in the September 2018 SOC that pes planus was noted to have existed prior to service, the record does not show that the Veteran's disability pre-existed service. The Veteran's January 1986 enlistment examination report does not note any disabilities related to the feet. There is no clear and unmistakable evidence within his service treatment records or the claims file which shows he had a foot disability prior to active service. Therefore, the presumption of soundness has not been rebutted and the Veteran is presumed to have been sound upon entry into active-duty service. The Veteran has not been afforded a VA examination for his claimed disability and an opinion as to the etiology of his disability has not otherwise been obtained. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of a disability, the record shows that the disability or symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service treatment records show complaints of bilateral foot pain, blisters, corns, and a diagnosis of pes planus. An August 2, 2019, VA treatment record shows that the Veteran reported problems with his feet that need surgery. Private treatment records show that the Veteran has complained of foot pain/swelling, and a June 6, 2018, record from the Ryan Center shows diagnoses including cavus deformity of foot and corns and callosities. Based on the foregoing, the low threshold for obtaining a VA examination for the Veteran's bilateral foot impairment has been met, and a remand is necessary in order for such to be accomplished. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Despite the evidence noted above, insufficient competent medical evidence is of record to decide this claim and a VA examination under the standards of McLendon is warranted. Additionally, the record shows that the Veteran has received treatment from VA and private treatment from the Ryan Center and from Mercy Philadelphia Hospital for various disabilities, including his claimed bilateral foot impairment. Notably, some private medical records are in the Veteran's file through 2019, but it is not clear if additional, more recent, records exist. As there may be additional private treatment records related to his claimed bilateral foot impairment not yet associated with the record, upon remand, any outstanding records must be obtained, to the extent possible, and associated with the record. Finally, of note, review of the record reveals that the Veteran is homeless, has struggled with drug addiction, and has expressed suicidal ideation. The record does not show any recent contact with the Veteran, and he did not appear for the February 3, 2023, Board hearing. Moreover, in March 2022 correspondence, the Veteran's representative stated that the Veteran's whereabouts are unknown. Based on this evidence, and in the interest of the Veteran's well-being, the Board finds that efforts must be made to locate and contact this Veteran. The matter is REMANDED for the following action: 1. Attempt to locate and contact the Veteran including, but not limited to, contacting the Homeless Veterans Outreach Coordinator, or other appropriate official, assigned to the area of the Veteran's last known address or whereabouts. All efforts to locate and contact the Veteran must be documented and associated with the record. 2. After completing the above development, obtain all necessary authorization from the Veteran, and associate with the claims file any outstanding private treatment records identified by the Veteran or his representative as pertinent and related to his bilateral foot disability from providers who have treated or diagnosed his disability, including, but not limited to records from the Ryan Center and Mercy Philadelphia Hospital. 3. After completing the above development, schedule the Veteran for a VA examination to determine the current nature and likely etiology of his claimed bilateral foot impairment. The examiner must review the claims file in conjunction with the examination. The provided opinion should reflect that the claims file was reviewed. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished and documented in the file. (a.) Identify whether the Veteran has a confirmed diagnosis of a bilateral foot disability. The examiner must address the Veteran's reports of foot pain/swelling, as well as the June 6, 2018, record from the Ryan Center showing diagnoses including cavus deformity of foot and corns and callosities. (b.) The examiner must opine as to whether it is at least as likely as not that the Veteran's bilateral foot impairment had its onset in service, is related to any injury during his active service, to include his in-service diagnosis of pes planus and his complaints of bilateral foot pain, blisters, and corns. The examiner should provide the opinion based on the Board's finding that the Veteran was presumed sound upon enlistment to service. (c.) The examiner is advised that the Veteran is competent to report his observable symptoms and history, such as pain and swelling, and such reports must be specifically acknowledged and considered in formulating opinions. If the examiner discounts any lay assertions, he or she must provide an explanation for doing so. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must provide an explanation for all conclusions reached based on the evidence of record and medical principles. (Continued on the next page) In remanding this claim, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.