Citation Nr: A25041238 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 211129-200603 DATE: May 6, 2025 REMANDED Entitlement to service connection for right foot surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1981 to October 2001. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2021 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for right foot surgery as secondary to her service-connected right foot bunionette. In November 2021, the Veteran appealed the October 2021 rating decision by submitting a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), and electing the Evidence Submission docket. For this appeal on the Evidence Submission docket, the Board may consider only the evidence of record at the time of the October 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with her Notice of Disagreement or within 90 days from receipt of the Notice of Disagreement, a period which ended on February 17, 2022. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the rating decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. That said, because the Board is remanding the claim, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to service connection for right foot surgery is remanded. Although the Board regrets further delay, it finds that the claim must be remanded for the AOJ to cure its duty to assist error by obtaining outstanding records and properly adjudicating the claim. In her November 2021 VA Form 10182, the Veteran requested that the Board "pull and review" Reno VA Medical Center (VAMC) records as evidence. Under the AMA, the Board does not have a duty to assist the Veteran in obtaining the evidence needed to support her claim. That said, the Board is responsible for identifying duty to assist errors that were made by the AOJ prior to the decision on appeal and remanding to correct such errors. 38 C.F.R. §§ 3.159, 20.802. To this end, the law is clear that VA has a duty to assist Veterans in obtaining evidence to substantiate their claims. 38 C.F.R. § 3.159(c). In the "Claim Information" section of her August 2021 VA Form 21-526EZ, Fully Developed Claim (Compensation), the Veteran wrote that she was claiming disability benefits for "callosities of feet in the Achilles areas and along the lateral side of the feet near the little toes (claimed as bilateral foot condition) - claiming increase" and "Right foot surgery scheduled for 10/7/2021." In a letter submitted with her Compensation form, the Veteran repeated her Compensation form claim and further wrote that her "right foot lateral callosity near the little toe ha[d] been painful for the past 10 months and ha[d] gotten worse" and that "[her] VA doctor ha[d] advised [her] that the enlarged callosity in this area need[ed] to be surgically removed." She ended by writing, "My foot surgery is scheduled for October 7, 2021." See August 2021 Letter. The Board finds that the AOJ should have waited to adjudicate the Veteran's claim until after the date indicated by the Veteran in her application, in her letter, and in her VA treatment records. The Veteran made it clear that her surgery was scheduled to take place on October 7, 2021. VA treatment records associated with the claims file at the time of the October 2021 rating decision on appeal show that the Veteran soon would undergo surgery of her right foot. In not waiting, the AOJ committed a pre-decisional duty to assist error in that it did not assist the Veteran in obtaining evidence to substantiate her claim. As such, remand is necessary to obtain the pertinent VA medical records and for the AOJ to adjudicate the matter in the first instance. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2021 to the present. 2. After obtaining the records, complete any further development necessary based upon the newly obtained treatment records. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Louis M. Figueroa 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.