Citation Nr: 1760298
Decision Date: 12/27/17 Archive Date: 01/02/18
DOCKET NO. 14-19 953 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
1. Entitlement to service connection for a right ankle disorder.
2. Entitlement to service connection for a right foot disorder.
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
K.M. Walker, Associate Counsel
The appellant served in the South Carolina Army National Guard from January 1982 to May 1982 and had a period of active duty for training (ACDUTRA) from April 12, 1982, to May 24, 1982.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In May 2016, the appellant testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript is of record.
This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing systems. Accordingly, any future consideration of this appellant’s case should take into account the existence of these electronic records.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
The Board notes there are outstanding private treatment records that were identified during the May 2016 hearing. Specifically, the appellant testified that he had been seeing Dr. B. (initials used to protect privacy) for the last five years. However, the claims file does not contain any treatment records from that physician dated since 2012; there is a statement dated in 2013 and a May 2016 DBQ. The appellant also stated that Dr. B. had referred him to Dr. C, but the claims file does not contain any medical records from that physician. Thus, on remand, the AOJ should attempt to obtain any outstanding records.
The Board also notes that the appellant was afforded VA examinations in March 2013 in connection with his claims. The examiner diagnosed him with metatarsalgia, hammertoes, and hallux rigidus, but found that he did not have a current right ankle disorder. The examiner opined that the claimed condition was less likely as not incurred in or caused by the in-service event, injury, or illness. In so doing, he found that the complaints in service were related to the posterior aspect of the foot and region of the Achilles tendon and explained that the current foot problems were in the forefoot, including hallux rigidus status post arthrodesis, metatarsalgia, and hammertoe deformity. He commented that hallux rigidus is chronic in nature and likely developed over many years and not solely one or two months in the military. The examiner indicated that the remainder of the current right foot problems are likely related to the chronic hallux rigidus as well as trauma sustained to the foot resulting in multiple fractures.
Nevertheless, since that examination, the appellant submitted a May 2016 disability benefits questionnaire (DBQ) documenting a diagnosis of right Achilles tendonitis. Therefore, the Board finds that an additional VA examination and medical opinion are needed.
The Board does note that the May 2016 DBQ contains a medical opinion that the appellant’s right Achilles tendonitis and right foot disorders are related to his military service. However, that physician does not appear to have based his opinion on a complete and accurate factual premise. In this regard, the Board notes that the physician did not address any post service-injuries. Rather, he stated that the appellant did not have any injuries to his foot or ankle since service; the evidence of record does document post-service injuries See e.g. April 2009 private medical record (documenting recent motor vehicle accident with resolving contusions abrasions on right arm and right leg); February 2012 private medical record (appellant reported that his Harley Davidson fell on his foot and that he developed immediate pain and swelling; noting new injury with recent metatarsophalangeal arthrodesis now with fracture involving the base of the metatarsal and second metatarsal); May 2012 private medical record (early hammertoes likely related to first metatarsal fracture with a little bit of dorsal drift as it healed).
Accordingly, the case is REMANDED for the following action:
1. The AOJ should request the appellant provide the
names and addresses of any and all health care providers
who have provided treatment for his right foot and right ankle disorders, to include any records from Dr. B and Dr. C. of Lexington Family Practice which were identified during the May 2016 hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files.
The AOJ should also secure any outstanding VA
2. After completing the foregoing development, the appellant should be afforded a VA examination to determine the nature and etiology of any right foot and any ankle disorders that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.
The examiner is requested to review all pertinent records associated with the claims file, including the appellant’s service treatment records, post-service medical records, assertions, and May 2016 DBQ.
The examiner should note the appellant is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation.
The examiner should opine as to whether it is at least as likely as not that the appellant has a right foot and ankle disorder that manifested in service or is otherwise causally or etiologically related to his period of ACDUTRA from April 12, 1982, to May 24, 1982, including any injury or symptomatology therein. See May 1982 service treatment record.
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability is viewed in relation to its history,” copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review.
3. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs.
4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014).
Veterans Law Judge, Board of Veterans’ Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans’ Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).