Citation Nr: 1211397 Decision Date: 03/29/12 Archive Date: 04/05/12 DOCKET NO. 06-01 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right foot disorder, to include hammertoes, peripheral vascular disease, hyperkeratosis, a plantar wart, and dermatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active service in the United States Army from March 1967 to March 1969, to include combat duty in Vietnam as an infantryman. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appealed this decision, denying service connection for a right foot disorder, to the Board. In a September 2009 decision, the Board denied service connection for a right foot disorder. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2011 memorandum decision, the Court ordered that the September 2009 Board decision be vacated. In December 2011, the Veteran submitted additional evidence, in the form of a statement, without a waiver of Agency of Original Jurisdiction (AOJ) review. Yet, as this matter is to be remanded in compliance with the Court's July 2011 memorandum decision, the case will be remanded to the AOJ and the lack of waiver is of no effect in this matter. The Board notes that there has been some confusion as to the identity of the Veteran's representative in this matter. Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim. 38 C.F.R. § 14.631(e)(1) (2011). A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). In November 2007, the Veteran filed a VA Form 21-22, an Appointment of a Veterans Service Organization (VSO) as the Claimant's Representative, indicating that he wished for the Texas Veterans Commission (TVC) to represent him in this matter. Subsequently, in January 2009, the Veteran filed a VA Form 21-22, indicating that he wished for the Disabled American Veterans (DAV) to represent him. In compliance with the January 2009 VA Form 21-22, in July 2009, the VA Remand and Rating Development Team (RRDT), located at the RO in Huntington, West Virginia, issued a Supplemental Statement of the Case (SSOC) to both the Veteran and DAV. In August 2009, the Veteran filed an additional VA Form 21-22, again indicating that he wished for DAV to represent him. In order to assist the Board in making a decision of the Veteran's claim, in September 2009, the Board requested that a DAV representative at the Washington DC office of DAV write an Informal Hearing Presentation (IHP) on the Veteran's behalf. Despite the inclusion of the January 2009 VA Form 21-22 in the claims file, listing DAV as the Veteran's representative, DAV did not write an IHP. Instead, DAV returned the claims file with a cover sheet, apparently indicating that a VA Form 21-22 showed that TVC represented the Veteran. As noted above, when a veteran files a VA Form 21-22 at a time when another VA Form 21-22 is already on file, the most recent VA Form 21-22 will revoke the previous one; however, the Board notes that, even if the Veteran files a VA Form 21-22, a VSO may decline to represent a veteran in accordance with its own internal policies. In instances in which a VSO, such as DAV, declines to represent a veteran who, at the time, was represented by another VSO, such as TVC, VA will consider the original representative, such as TVC, to be the Veteran's representative. In this case, as DAV did not write an IHP on the Veteran's behalf and indicated that TVC was representing him, the Board assumed that DAV had chosen not to represent the Veteran and issued the September 2009 Board decision to both the Veteran and TVC. In the Court's July 2011 memorandum decision, the Court decided that VA failed to properly notify the Veteran's representative during the pendency of the Veteran's appeal. Based on VA's assertions that DAV had never represented the Veteran in this matter, the Court stated that the Veteran's representative at the issuance of the July 2009 SSOC was TVC; therefore, the Court found that RRDT improperly sent notice of the July 2009 SSOC to DAV. As noted above, in September 2009, DAV seemingly indicated that they did not represent the Veteran when they filed a notice with VA indicating that they would not write an IHP on his behalf due to the power of attorney already of record selecting TVC as his representative. As TVC was the only other representative of note in the claims file, the Board relied on these facts as known at the time to identify TVC as the representative and to issue the September 2009 decision to TVC. Since the Court's July 2011 memorandum decision, representation in this appeal has been clarified. In a March 16, 2012 telephone conversation, the Veteran told a Board representative that DAV was representing him in this matter and, to his knowledge, DAV had represented him since January 2009. Moreover, in January 2012, a DAV representative at the Washington, DC, office filed a brief in support of the appeal (informal hearing presentation or IHP) on the Veteran's behalf. As the Veteran has sufficiently indicated that DAV represents him in this matter on appeal, and DAV has shown that they agree to this representation, expressions and actions consistent with the January 2009 VA Form 21-22 appointing DAV as the representative, VA will recognize DAV to be the Veteran's representative in this matter. As the Veteran is only allowed to have one representative in matters with VA, see 38 C.F.R. § 14.631(e)(1), and has chosen DAV to be his representative in the latest power of attorney of record in January 2009, the Board finds that the November 2007 power of attorney in favor of TVC was revoked by the submission of the January 2009 power of attorney form in favor of DAV. See 38 C.F.R. § 14.631(f)(1) (the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney). For these reasons, TVC will not be recognized as the representative, and no further documents in this matter will be sent by VA to TVC. The Veterans Law Judge who signed the September 2009 Board decision is no longer employed with the Board; therefore, the undersigned Veterans Law Judge has been assigned this case. During the pendency of this appeal, in a November 2008 rating decision, the RO denied a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The record indicates that the Veteran appealed this matter to the Board. Prior to the certification of the claim for a TDIU to the Board, in a September 2010 rating decision, the RO granted the claim for a TDIU. As the September 2010 rating decision acted as a full grant of that particular issue, the Veteran's claim for a TDIU is not in appellate status and is not before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND As indicated in the Court's September 2009 memorandum decision, further development is required in this matter. The Veteran essentially contends that his right foot disorder is related to service. The relevant evidence consists of service treatment records, VA and private treatment records, and statements from the Veteran. Service treatment records include a March 1967 Report of Medical Examination for Induction that contains a normal clinical evaluation of all systems, to include the feet. A June 1967 service treatment record indicates that the Veteran complained of sore feet, for which he was prescribed ointment. In a September 1967 service medical examination report, the service examiner noted that the Veteran had a "[t ]ender plantar wart mid plantar right foot." A February 1969 Report of Medical Examination for Separation contained a normal clinical evaluation of all systems, to include the feet. In the accompanying Report of Medical History, the Veteran indicated that he had no foot trouble. Service personnel records indicated that the Veteran was put on physical profile in September 1967 due to a probable peptic ulcer and spleen enlargement. Post-service treatment records include a September 1997 private treatment record that reflects the Veteran reported having pain in both feet with a tingling, numb feeling at night. Upon physical examination, the examiner noted that the right distal foot was cool and low pedal pulses. In an October 1997 private treatment record, an examiner stated that the Veteran had a combination of peripheral arterial occlusive disease and some arthropathy of the feet. In a November 2004 VA treatment record, the examiner noted that the Veteran had blistered skin on the bottom of his right foot at the first MP joint, as well as elongated thickened toenails. A physical examination revealed a subtalar varus foot type, +2 midstance pronation. The VA clinician noted symptomatic hammertoes two through five and a varus contracted fourth toe with absence of hair. The joints of the feet were nonpainful upon range of motion and palpation, except for hallux limitus, nonrestrictive. There was no evidence of joint swelling, redness, or increased temperature. The clinician also noted evidence of skin dermatitis and discoloration of the skin consistent with peripheral vascular disease. Superficial varicosities were also apparent. The assessment, in pertinent part, was hyperkeratosis and symptomatic hammertoes. In an April 2006 statement, the Veteran's wife stated that, throughout the night, the Veteran had to get up from bed due to the pain in his feet. She indicated that, even when he was asleep, he would awaken her by kicking his feet. He told her that his toes were aching and that the kicking helped. A May 2006 letter from the Veteran's former supervisor stated that he "was absent from work frequently" and that "[u]pon inquiry, he would sometimes indicate that he had problems with his feet." In a December 2007 VA treatment record, the Veteran reported having generalized foot pain. He indicated that he had prescription shoes, but stated that he did not wear them because they hurt his feet. The examiner noted that the Veteran had a history of hammertoes and his toenails were elongated/lytic. He indicated that the toenails limited the Veteran's ambulation. The examiner had an assistant cut the Veteran's toenails. Pedal pulses were palpable, sensation was intact, and there was no evidence of edema. In a January 2008 statement, the Veteran reportedly indicated that he had experienced right foot problems since service to the present. In an April 2009 VA medical examination, the Veteran reportedly stated that he served in Vietnam during the monsoon season. He recalled developing blisters that required lancing. Since service, he stated that he periodically had blisters and calluses on his feet. He indicated that he sought treatment from private physicians for these disorders. He reported that he had a blister on the sole of his foot debrided in 2004. He indicated that he took care of his feet very carefully, trimming his calluses either by himself of with the help of his wife. He reported experiencing pain when walking on the sole of his foot and that he wore special shoes provided by the VA. Upon physical examination in April 2009, the VA examiner noted that the Veteran walked with a normal gait. The VA examiner noted: a 20 degree valgus deviation of the distal phalanx of the big right toe; no hallux valgus; 0.5 cm corns on the dorsum of the fourth and fifth, second and third toes; and hammertoes of the second, third, fourth, and fifth toes of the right foot. The Veteran had no tenderness on palpation of the midfoot. His Achilles tendon was aligned. The examiner could not feel a dorsalis pedis or posterior tibial pulse, but the integrity of the foot was present. He had good capillary refill. The nails were normal. The VA examiner found no calluses on the soles of the Veteran's feet at the time of the examination. There was no evidence of any dermatitis, fungal infection, or pes planus. The impression was hammertoes of the second, third, fourth, and fifth toes of the right foot; and currently trimmed calluses of the soles of the right foot. The VA examiner in April 2009 indicated that he could not make a diagnosis of any vascular or dermatitis disorder at that time. After the physical examination and a review of the service treatment records, the examiner stated that there was no evidence that the Veteran had any of his current foot disorders while he was in service. As such, the VA examiner opined that he could not relate any foot disorder to the Veteran's service, and it was less likely than not that the Veteran's current foot disorder was related to service. In a May 2009 statement, the Veteran stated that he was put on a physical profile in 1967, presumably due to his foot disorder. As noted above, in April 2009, VA provided a VA medical examination to determine the nature and etiology of the Veteran's claimed right foot disorders. In the July 2011 memorandum decision, the Court found that the April 2009 VA medical examination report was not adequate in its description of the Veteran's current foot disorders and its discussion of the Veteran's medical history. Therefore, a remand is necessary to provide an additional VA medical examination to determine the nature and etiology of the Veteran's claimed right foot disorders. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). In the April 2009 VA medical examination report, the VA examiner did not specifically note reviewing the claims file. Although the VA examiner noted the contents of the September 1967 service medical examination report, the VA examiner did not comment on the June 1967 service treatment record noting sore feet, the September 1967 service treatment record regarding a wart of the right foot, and the February 1969 Report of Medical Examination for Separation, containing a normal clinical evaluation of all systems, to include the feet. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (stating that a medical examination is considered adequate when it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). Moreover, the VA examiner did not discuss the lay statements of record regarding continuity of symptomatology of a right foot disorder since service, to include those provided the day of the April 2009 VA medical examination. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (Vet. App. 2007) (holding that a medical examination is inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Moreover, in the April 2009 VA medical examination report, the VA examiner stated that he could not make a diagnosis of any vascular or dermatitis disorder at that time. The Board notes that either a vascular disorder or dermatitis had been noted in both the October 1997 private treatment record and the November 2004 VA treatment record. In writing that he could not make a diagnosis for a vascular or dermatitis disorder, the April 2009 VA examiner was unclear as to whether the Veteran's present signs and symptoms did not warrant such a diagnosis, or whether another reason prevented the VA examiner from making such a diagnosis. Moreover, regarding dermatitis, the April 2009 VA examiner did not indicate in his report whether he found that the Veteran did not have this disorder, or whether a Veteran disorder the Veteran had in the past was asymptomatic on the date of the April 2009 VA medical examination. As the April 2009 VA examiner did not account for the medical and lay evidence of record, and was unclear in the findings regarding the existence of a vascular disorder and a dermatitis disorder, an additional VA medical examination and opinion is necessary. See Barr, 21 Vet. App. at 303. Moreover, in an August 2010 brief to the Court, the Veteran indicated that he wished VA to request his most recent treatment records from the Dallas VA Medical Center. As this claim is being remanded, the Board will request all VA treatment records dated from April 2009, the most recent VA treatment record included in the claims file in conjunction with the Veteran's claim for service connection for a right foot disorder. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request the Veteran to identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided care for his right foot disorder since April 2009. After securing the necessary releases, the AMC/RO should attempt to obtain copies of pertinent treatment records identified by the appellant, to include all records of treatment from the Dallas VAMC dated after April 2009. In contacting the Veteran, the AMC/RO should insure that copies are sent to the Veteran's recognized representative, the Texas Veterans Commission. 2. The RO should schedule the Veteran for a VA medical examination, to be performed by a qualified podiatrist, to ascertain the nature and etiology of any current right foot disorder, to include hammertoes, peripheral vascular disease, hyperkeratosis, a plantar wart and dermatitis. The relevant medical evidence from the claims folder should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. The VA examiner should note the review of these documents in the VA medical examination report. An interview of the Veteran regarding the history of this right foot disorder, and all tests and studies required to respond to the following questions should be performed. The VA examiner should list all current psychiatric disorders and clearly address the following: Is it at least as likely as not (50 percent or more likely) that any right foot disorder, to include hammertoes, peripheral vascular disease, hyperkeratosis, a plantar wart and dermatitis, was first manifested in service or is otherwise related to service? The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. A rationale should be given for any opinion provided. If an opinion cannot be provided without resort to pure speculation, the VA examiner should explain why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc). The VA examiner should identify the relevant testing or other information needed to provide the requested opinion. If development is required, the development should be conducted and the claims file returned to the VA examiner. In writing the VA medical examination report, the VA examiner should specifically note the service treatment records and post-service treatment records, listed in this remand, as well as the Veteran's lay statements regarding continuity of symptomatology of a right foot disorder. The VA examiner should be clear in the diagnoses, especially regarding the presence or non-presence of dermatitis and/or a vascular disorder. The VA examiner should comment on the following treatment records: the June 1967 service treatment record noting sore feet; the September 1967 service treatment record regarding a wart of the right foot; the February 1969 Report of Medical Examination for Separation, containing a normal clinical evaluation of all systems, to include the feet; the October 1997 private treatment record diagnosing a combination of peripheral arterial occlusive disease and some arthropathy of the feet; and the November 2004 VA treatment record, noting skin dermatitis and discoloration of the skin consistent with peripheral vascular disease. 3. If the benefit sought on appeal is not granted, the Veteran and the representative should be provided with a SSOC. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of this claim. See 38 C.F.R. § 3.655 (2011). The Veteran has the right to submit additional evidence and argument on the matter 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 Supp. 2011). _________________________________________________ J. PARKER 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) (2011).