Citation Nr: 1037017 Decision Date: 09/29/10 Archive Date: 10/05/10 DOCKET NO. 06-35 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased evaluation for plantar warts and callosities, currently assigned a 10 percent disability evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from January 1955 to January 1958. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case for further development in June 2009, and the case has since been returned to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for Remand: To notify the Veteran of the pertinent rating criteria and to afford him a VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In this case, the Board observes that the Veteran has not been provided the rating criteria pertinent to his claim for an increased evaluation for plantar warts and callosities. In this regard, the Board notes he is currently assigned a 10 percent disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276. The October 2006 statement of the case (SOC) provided the Veteran with Diagnostic Codes 7800, 7801, 7802, 7803, 7804, 7805, 7806, and 7820, but did not include Diagnostic Code 5276. Therefore, the Board finds that a remand is necessary for the issuance of a SSOC and to ensure due process. The Board also notes that the Veteran was afforded a VA examination in May 2006 in connection with his claim for an increased evaluation. However, the Veteran's representative submitted a brief in March 2009 in which he contended that the examination was inadequate because the examiner only documented complaints of pain in both feet and intractable porokeratosis beneath the second toe on the right foot. The Board does note that it has been well over four years since the Veteran's last examination. In addition, the May 2006 VA examiner indicated the claims file was not available for review. Applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); see also 38 C.F.R. § 3.326 (2002); VAOPGCPREC 20-95 (July 14, 1995) (a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a VA examination is necessary to determine the current severity and manifestations of the Veteran's plantar warts and callosities of both feet. Moreover, the Board notes that the claims file does not contain any treatment records dated after October 2006. Therefore, as this case is already being remanded, the RO should take this opportunity to obtain and associate with the claims file any and all treatment records pertaining to the Veteran's plantar warts and callosities of both feet. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his plantar warts and callosities. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. 2. After completing the development in the foregoing paragraph, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected plantar warts and callosities of both feet. 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. It should be noted that the Veteran is separately service-connected for a fungus infection of the feet with thickened toenails. Service connection has been denied for hammer toes of the right and left feet. The examiner should comment on the severity of the Veteran's service- connected plantar warts and callosities of both feet and report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. The examiner should indicate whether the Veteran's disability is severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. He or she should also state whether the disability is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. 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. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), 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 RO should conduct any other development as may be indicated by a response received 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 RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should set forth all applicable laws and regulations, including Diagnostic Code 5276. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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 Supp. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2009).