BVA9504905 DOCKET NO. 93-09 051 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for a left ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active air service from August 1951 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. REMAND In regard to the claim for service connection for a left foot disability, it was noted in service outpatient records by enlisted personnel at the end of September 1951 that the veteran injured his left foot. The veteran testified at a hearing at the RO in September 1992 that he struck his the top of his left foot against a metal locker while being assaulted by another airman during basic training. The service outpatient records show the veteran was admitted to the orthopedic ward the next day for a "bad sprain" of the left foot. He testified at the RO hearing that he stayed in the orthopedic ward for one week. The treatment records from the orthopedic ward are not a part of his service medical records. In the middle of October 1951, it was noted that he was unable to walk on his foot. He was referred to the orthopedic clinic, but his service medical records do not contain any report of an orthopedic consultation. The veteran also testified at the September 1992 RO hearing that he was allowed to wear slip-on boots during the remainder of his time in service because shoes with laces caused swelling of the left foot. He related that he had experienced problems with his left foot ever since service, and that he has treated himself by soaking the foot in hot water. He indicated he did not receive medical treatment for his left foot problems until 1975. In 1983, he submitted to the RO a letter from his daughter to the effect that she was born in 1955, and that her father had experienced pain in the left foot as far back as she could remember. She added that his foot made a cracking sound and always had a hump on it. The veteran and his wife mentioned that around 1975 or 1976, a chiropractor informed the veteran that an X-ray of the left foot at that time showed the presence of a bone chip and a calcium deposit. It is noted on the RO's June 1984 rating decision that a November 1983 VA X-ray revealed narrowing of a metatarsal joint of the left foot. However, the report of that X-ray is not of record. A March 1991 VA X-ray of the left foot showed degenerative changes at the first and second tarsometatarsal joins which consisted of bony sclerosis, irregular cortex, and decreased joint space. The VA radiologist opined that these abnormalities most likely represented changes due to trauma or chronic degenerative arthrosis. Solely for the purpose of determining whether or not there is a well-grounded claim, evidence submitted by the veteran will be presumed credible. King v. Brown, 5 Vet.App. 19, 21 (1993). Presuming the veteran's testimony at the RO to be credible as required by the holding of King, his testimony provides evidence of trauma to the metatarsal joints of his left foot. In addition, continuity of symptomatology, and not continuity of medical treatment, is required to establish service connection when a condition was not noted during service to be chronic. See Wilson v. Derwinski, 2 Vet.App. 16, 19 (1991). Therefore, the absence of medical treatment for the veteran's reported left foot problems for many years following service does not preclude establishing service connection for this disorder. The opinion by the VA radiologist in March 1991 indicates a possible medical relationship between the injury to the foot during service and the arthritis of the foot shown by the VA X-ray. Based on the evidence, the Board determines that the veteran has submitted a well-grounded claim for service connection for a left foot disability within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once the veteran has submitted a well-grounded claim, the VA has a duty to assist him in the development of his claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Based on the veteran's 1983 statement and his 1992 testimony, there possibly exist private treatment records which show abnormalities of the left foot in 1975 or 1976. The duty to assist includes the obtaining of private treatment records. See Dyess v. Derwinski, 1 Vet.App. 448, 455 (1991). Moreover, a more definitive medical opinion as to the nature of the arthritis of the veteran's left foot (traumatic vs. degenerative) would assist the Board in rendering its decision. The duty to assist also includes a thorough and contemporaneous examination to remove any diagnostic doubt that considers the records of prior medical examinations and treatment. Green v. Derwinski, 1 Vet.App. 121, 123-124(1991). Furthermore, the veteran indicated at the September 1992 RO hearing that he was receiving Social Security disability benefits. If the veteran was awarded Social Security disability benefits based on the decision of an Administrative Law Judge, obtaining a copy of the decision as well as the medical records upon which the decision was based may be helpful to the VA in deciding the veteran's appeal. The Board will defer any decision regarding whether the veteran's claim for service connection for a left ankle disability has been reopened, pending completion of the actions requested below. Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should request that the veteran submit to the RO the current address of his former treating chiropractor in Tampa, Florida, Dr. Daniel Pia. If the veteran is unable to provide the current address, the RO should attempt to obtain the chiropractor's current address from the Tampa-St. Petersburg telephone directory or from other available resources. After receiving the necessary authorization from the veteran, the RO should request from the chiropractor the records of treatment of the veteran during 1975 or 1976. All treatment records should be associated with the claims folder. 2. After obtaining the proper authorization from the veteran, the RO should obtain a copy of any decision by the Social Security Administration that determined the veteran was disabled for the purpose of receiving Social Security disability benefits. Copies of any medical records upon which the decision was based should also be requested. All Social Security Administration documents received should be associated with the claims folder. 3. The RO should request the veteran to provide the names of VA medical facilities at which he has received medical care of any type, and the approximate dates of treatment. Once this information is obtained, the RO should obtain the VA treatment records and associate them with the claims folder. 4. The RO should attempt to obtain a copy of the report of the VA X-ray taken of the veteran's left foot in November 1983 and associate it with the veteran's claims folder. 5. Once the actions requested in the indented paragraphs above have been completed, the veteran should be afforded a VA orthopedic examination of the veteran's left foot and ankle, to include X-rays, in conformity with the VA's Physician's Guide for Disability Evaluation Examinations (1985) to determine the nature and severity of any disorders of the veteran's left ankle and foot. The examiner is requested to review the claims folder, including the medical records and the veteran's testimony at the September 1992 RO hearing, as well as the current examination findings. Based on this evidence, it is requested that the examiner offer an opinion as to (1) the existence of any disorder of the left ankle; (2) if possible, whether the abnormalities of the tarsometatarsal joints of the left foot shown by VA X-ray in March 1991 were traumatic or degenerative in origin; (3) the probability of a causal relationship between the abnormalities of the tarsometatarsal joints of the veteran's left foot and the injury that he reported he sustained to the left foot in 1951; and (4) the probability of a causal relationship between the abnormalities of the tarsometatarsal joints of the veteran's left foot and any disorder found of the veteran's left ankle. The orthopedic examination should be performed even if the RO is unsuccessful in obtaining all of the records requested by the Board in the indented paragraphs above. Therefore, the claims folder must be made available to the examiner for review prior to and during the examination. 6. Once the report of the VA orthopedic examination has been received, the RO should adjudicate the issues of service connection for a left foot disability and whether new and material evidence has been received to reopen a claim for service connection for a left ankle disability. In regard to the latter issue, the RO should determine whether all the evidence received since the original rating decision in August 1978 is new and establishes a reasonable possibility of a change in the outcome of the August 1978 rating decision. See Manio v. Derwinski, 1 Vet.App. 1 Vet.App. 140, 145 (1991); Glynn v. Brown, 6 Vet.App. 523, 529 (1994). If the RO determines that the claim has been reopened, the RO should then determine whether any additional development of the evidence is required to assist the veteran in the development of his reopened claim before adjudicating the reopened claim. See Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992). In regard to the issue of service connection for the left foot disability, if the examining VA orthopedist expresses an opinion that there is a causal relationship between the veteran's reported injury during service and his current left foot disability, and in the event the RO does not accept the medical opinion as establishing a basis for granting service connection, the RO is requested to furnish specific reasons for rejecting the physician's medical opinion. 7. If any of the benefits sought on appeal are not granted, the veteran and his representative must be provided with a supplemental statement of the case and provided the applicable period of time to respond before the case is returned to the Board for further review. The purpose of this REMAND is to assist the veteran in the development of his claim for service connection for a left foot disability. The Board does not intimate any opinion as to the merits of this case, either favorable or unfavorable, at this time. No action is required of the veteran until he is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).