Citation Nr: 1761151
Decision Date: 12/29/17 Archive Date: 01/02/18
DOCKET NO. 08-28 234 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
Entitlement to service connection for residuals of a right foot injury.
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
M. Zimmerman, Associate Counsel
The Veteran served on active duty from January 1966 to December 1967. He had additional service with the Army Reserve.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.
In June 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of that hearing is of record.
The Board previously denied the Veteran’s claim for entitlement to service connection for residuals of a right foot injury in April 2014. In January 2015, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion to Remand and vacated and remanded the Board’s April 2014 decision.
In April 2015 and May 2016, the Board remanded this claim for further evidentiary development consistent with the terms of the January 2015 Joint Motion. While the Board acknowledges and regrets the further delay, the requirements of the Joint Motion and remand orders have not yet been fulfilled and a remand is required.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Joint Motion and the remand orders of April 2015 and May 2016 directed the AOJ to obtain the Veteran’s reserve service treatment records or document a negative response or other reason that further searching would be futile. In February 2017 and March 2017 the RO sent letters to the camp identified by the Veteran as his reserve assignment. In June 2017 the RO sent an email to various records repositories requesting reserve service records. To date, reserve treatment records have not been obtained and no negative response or finding of unavailability is of record.
The May 2016 remand required the AOJ to obtain a VA opinion addressing specific records, including a February 1980 private record. The September 2016 VA addendum opinion did not address this record. While not specifically mentioned by the remand order, there is also a March 2015 VA treatment record noting that the 5th metatarsal appeared to have been broken in the past as there was “excessive bony callus (sic)near the surgical neck of the bone.” A VA examiner should address whether this could have been the result of the Veteran’s injury in service.
Accordingly, the case is REMANDED for the following action:
1. Contact any appropriate source to obtain any outstanding reserve duty treatment records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) (2012) and 38 C.F.R. § 3.159(e) (2017).
2. Arrange for the examiner who provided the September 2016 VA examination and opinion to provide an addendum opinion. If that examiner is not available, arrange to have an appropriate orthopedic specialist provide an addendum opinion. Any additional VA in-person examination is left to the discretion of the VA examiner.
In accordance with the remand order of May 2016, the examiner is asked to update the opinion provided in September 2016, including a discussion of the following medical evidence: A February 1980 private treatment record noting a “fragment of bone adjacent to the tip of the lateral malleolus.”
The examiner is also asked to discuss a March 2015 VA treatment record noting that the 5th metatarsal appeared to have been broken in the past as there was “excessive bony callus (sic) near the surgical neck of the bone.”
For each condition, the Veteran should offer an opinion, with supporting reasons and bases, as to whether it is at least as likely as not (50 percent or greater probability) related to the Veteran’s right foot injury of in service.
3. Readjudicate the claim
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).