Citation Nr: 25003555 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 19-19 085A DATE: March 13, 2025 REMANDED Entitlement to service connection for residuals of right foot cold weather injury, to include gout, hallux valgus, and foot pain (hereinafter "residuals of right foot cold weather injury") is remanded. Entitlement to service connection for residuals for left foot cold weather injury to include gout, hallux valgus, and foot pain (hereinafter "residuals of left foot cold weather injury") is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to July 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 9, 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). On October 25, 2022, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. On May 9, 2023, the Board remanded the claims in order to update the Veteran's VA treatment records, and to obtain an addendum VA medical opinion. The RO obtained an addendum VA opinion in June 2023. In a February 8, 2024 decision, the Board denied the claims. The Veteran appealed the decision to the United States Board of Veterans Claims (Court). In an October 30, 2024 Order, the Court vacated and remanded the Board's decision pursuant to the terms of an October 23, 2024 Joint Motion for Remand (JMR) by the parties. 1. Entitlement to service connection for residuals of right foot cold weather injury is remanded. 2. Entitlement to service connection for residuals of left cold weather injury is remanded. In the October 2024 Order, the Court vacated and remanded these matters pursuant to a Joint Motion for Remand (JMR) by the parties to this appeal. The JMR directed the Board to issue a new decision, including a written statement of the Board's findings and conclusions, and the reasons and bases for those findings and conclusions on all material issues of fact and law presented on the record. 38 U.S.C. § 7104(d)(1). Specifically, the JMR instructed the Board to (1) address the probative value, or lack thereof, of the June 2017 VA examination, (2) adequately address the November 2022 private medical opinion in what they agreed was the proper context, (3) add a statement of reasons or bases addressing the probative weight of a November 2022 private medical opinion and (4) address whether the private treatment records that the Veteran submitted in April 2018 indicate that they may be incomplete, and whether efforts to obtain any remaining portions of those records are necessary. In April 2018, the Veteran submitted private treatment records from the McIntosh Clinic, PC and the Thomasville Foot and Ankle Center. The Board agrees that there is an indication in the records that they may be partial and/or incomplete. They may also be relevant. Any missing private treatment records may show a diagnosis of left or right lower extremity cold injury residuals, and if so, an indication that the clinician relates them to the Veteran's in-service cold weather injury. See 38 U.S.C. §5103A; 38 C.F.R. §3.159(c)(1). On remand, the RO should afford the Veteran an opportunity to submit any relevant outstanding private treatment records himself, or complete and submit authorization forms in order for VA to assist him in attempting to obtain any outstanding relevant private treatment records. The Board advises the Veteran that while VA has a duty to assist him in obtaining information pertinent to his claim, he has a duty to cooperate with VA in that development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"); Turk v. Peake, 21 Vet. App. 565, 568 (2008) (noting that VA's duty must be understood as a duty to assist a veteran in developing their claim, rather than a duty to develop the entire claim with the veteran performing only a passive role. If a claimant wishes help, he cannot passively wait for it in those circumstances where he may, or should, have information that is essential in obtaining relevant evidence. See Wood, 1 Vet. App. at 193. The Board will first address the duty to assist error identified by the parties, by instructing the AOJ to obtain any relevant, outstanding private treatment records identified by the Veteran. This duty to assist error should be remedied prior to any further adjudication of these matters by the Board. If the claims are not granted in full by the AOJ, the Board will then provide the written statement of the Board's findings and conclusions, and the reasons and bases for those findings and conclusions on all material issues of fact and law, as directed by the parties to the JMR. The matters are REMANDED for the following action: 1. Update the Veteran's VA treatment records. 2. Provide the Veteran with an opportunity to submit his private treatment records and/or VA Form 21-4142(s) authorizing VA to request copies of any outstanding private treatment records identified by the Veteran. Make two requests for the records unless it is clear after the first request that a second request would be futile. Document all requests for information, as well as all responses, in the claims file. 3. Review the expanded record, including the October 23, 2024 JMR which was granted by the U. S. Court of Appeals for Veterans Claims on October 30, 2024. Complete any additional development, including obtaining a new VA examination or addendum opinion, as deemed necessary. The AOJ and any VA examiner must also acknowledge and address the November 10, 2022 private medical opinion. 4. Readjudicate the Veteran's claims based on the expanded record. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran, his attorney and representative the opportunity to respond. Then return to the Board for further appellate review. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan E. Leary 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.