Citation Nr: 0715028 Decision Date: 05/21/07 Archive Date: 06/01/07 DOCKET NO. 04-01 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Service connection for bilateral plantar fasciitis. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from March 1956 until March 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2002 Rating Decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran was advised of the rating decision by letter dated in August 2002. REMAND A preliminary review of the record discloses a need for further development prior to final appellate review. Specifically, the Board finds that VA's duty to assist was not completely satisfied in this case. In the present case, no service medical records are available for review. The only service records in evidence are the veteran's discharge report and his certificate of acceptability for induction into the armed services. Although the RO searched for alternative records regarding the veteran's service, the RO was unable to produce additional records. When, through no fault of the veteran, records under the control of the Government are unavailable, the duty to assist is heightened. Dixon v. Derwinski, 3 Vet.App. 261, 263 (1992). VA's duty then requires that VA advise the veteran of his right to support his claim by submitting alternate sources of evidence, including service medical personnel statements, or lay evidence, such as "buddy" affidavits or statements. Id. While there is no presumption of service connection that arises, VA is obligated to exercise greater diligence in assisting the veteran with the development of the evidence in support of his claim. Washington v. Nicholson, 19 Vet. App. 362 (2005); Cromer v. Nicholson, 19 Vet. App. 215 (2005). Under Dixon, this rule, the Board finds that VA should have advised the veteran of the opportunity to support his claim with alternate forms of evidence, when faced with the unavailability of his service medical records. VA, however, failed to inform the veteran of these opportunities to support his claim in any of the duty to assist letters sent to him. Additionally, the veteran has provided private, treating physician letters dated in September 2003, July 2002, and December 2001, regarding his treatment for bilateral plantar fasciitis. The medical records generated by this physician, however, are not in the veteran's claims file. The Board is of the opinion that further development of the record is necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. Accordingly, this case is REMANDED for the following actions: 1. The RO/AMC should advise the veteran of his opportunity to submit lay testimony and other alternate sources of evidence in support of his claim. Such alternate forms of evidence include, but are not limited to, letters to and from the veteran during or after military service detailing events as to the disorder; letters of commendation or appreciation for his military service in performing the duties, which he claims caused his injury; and accounts, statements, and letters from his family, friends, acquaintances, and coworkers, detailing each respective writer's recollection of the development of the veteran's injury; post-service physical examinations, insurance claims, and any other material that would indicate that the veteran performed the duties he has described, that such duties could result in the injury currently claimed by the veteran, and that the veteran sustained his condition of plantar fasciitis during his time in service. 2. The RO/AMC should also have the veteran specify his post-service treatment dates, and identify his treatment providers. The RO should then obtain and associate with the claims file any records identified and not already associated with his claims file. Furthermore, the RO should obtain from the veteran an authorization for the release of medical records from his medical providers, including Rosario J. LaBarbera, DPM, at 194 Harison Avenue, Garfield, NJ 07026, and associate any records received with the claims file. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence. If the benefit sought is not granted, the veteran 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 veteran 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 2006). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).