BVA9505466 DOCKET NO. 93-12 335 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a chronic acquired right ankle/foot disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from September 1943 to January 1946. The Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, initially denied the veteran's claim for service connection for a right foot/ankle disorder in August 1975, at a time when concurrent consideration was being given to other disorders, and entitlement to nonservice-connected pension was established. The record does not reflect that the veteran was then informed of the denial of his claim for service connection for a right foot/ankle disorder and it thus did not become final. The veteran's pending claim for service connection for a right ankle/foot disorder was denied by the RO in September 1990. He provided testimony at a personal hearing held before a Hearing Officer at the RO in October 1991. The Hearing Officer subsequently denied the veteran's claim, after considering it on a de novo basis, and the Board of Veterans' Appeals (Board) will do likewise. The veteran has been represented in his appeal by The American Legion, which has made presentations on his behalf. REMAND The Board notes, incidentally, that in a March 1991 memorandum, the representative stated that he was submitting the veteran's Form 1-9. In a June 1991 memorandum, the representative noted that the Form 1-9 was not on file and indicted that he was enclosing a copy with his memorandum. However, it appears that the form still is not filed in the claims folder. The veteran avers that his right foot and ankle disability was diagnosed in service as exostosis and that he did not have it or any other right foot problem prior to service. Transcript (Tr.) at 2. He argues that he was treated for the problem for about a month in service after which he wore a foot "doughnut." Tr. at 3-4. After service he was treated for about two years by a physician and then resorted to treating himself. Tr. at 5-7. Service medical records show that on entrance examination in August 1943, no reference was made to right foot/ankle complaints and there were no noted abnormalities. In June 1944, the veteran was seen at an aid station for severe ligamentous strain, right foot, of undetermined cause. Service records show that by the time he was admitted to hospitalization on July 9, 1944, the condition was "healed." Hospital records show that for the past two months, he had had some pain, swelling and tenderness on the medial aspect of the right foot. The swelling became more severe and he was sent to an Evacuation Hospital where X-rays showed exostosis of the right os talus. An orthopedic consultation determined that there was no disease, and that he had a prominent scaphoid. He was given a cushion for support of the prominent tarsal scaphoid, which was described as having been incurred in the line of duty; the condition was described as improved by mid- July 1944 when he was returned to duty. On a VA examination in 1990, the veteran complained of swelling in the area of the right instep which was bothered by low cut shoes. While X-ray studies apparently did not reveal an exostosis, the examiner described feeling a palpable slight osseous tumefaction on the medial aspect of the right foot just distal to the external malleolus or right ankle. Palpation of the bony exostosis produced pain. No medical opinion was sought or given as to the etiology of the palpable deformity or its relationship, if any, to the findings in service. A statement received in 1992 from Dr. Vito Petruzzella, a podiatrist who examined the veteran in November 1991, indicates, in pertinent part, that the veteran has an excessively hypertrophied medial navicular tuberosity which was confirmed by X-ray. Based on the evidence of record, the Board finds that additional development is required. Accordingly, the case is REMANDED for the following actions: 1. The representative should be asked to submit another copy of the veteran's VA Form 1-9, if one is available. If so, it should be filed in the claims folder. 2. The veteran should be requested to identify any doctors who treated him for his foot problems after service and prior to 1989. With his consent, the RO should then obtain copies of his treatment records from those physicians as well as from Dr. Donald E. Scheirer, 18 Somerset St., North Plainfield, NJ 07060, a podiatrist who reportedly treated the veteran in May, July and November, 1989. 3. The veteran should then be examined by a VA physician, in accordance with the VA Physician's Guide for Rating Disability Evaluations, to determine the nature and extent of any current right foot/ankle disorders. All necessary studies should be accomplished and the X-ray films accompanying the claims folder should be reviewed. The claims folder, a separate copy of this remand and any evidence obtained pursuant to this remand must be made available to the examiner prior to evaluating the veteran's case. The examiner should provide an opinion as to the nature and etiology of any current right foot/ankle disorders and their relationship, if any, to the documented foot problems in service. The service medical records should be reviewed before the opinion is given. 4. Thereafter, the case should be reviewed by the RO. If the decision remains adverse, a Supplemental Statement of the Case should be issued, and the veteran and his representative should be given a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The veteran need do nothing further until so notified. JANE E. SHARP 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).