Citation Nr: 1301599 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-06 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a left foot disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for the residual scar of the right great toe, associated with the postoperative arthritis of the right great toe, status post osteotomy. 3. Entitlement to an initial disability rating in excess of 10 percent for the residual scar from a laceration to the right index finger. 4. Entitlement to service connection for a right hand and right thumb disability. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to June 1993. The Veteran's claim originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. The Board previously considered the appeal in August 2011. At that time, the Board denied the claims for service connection for a left foot disorder, an increased evaluation for postoperative arthritis of the right great toe, status post osteotomy, an earlier effective date for the postoperative arthritis of the right great toe and an earlier effective date for the residual scar from a laceration to the right index finger and remanded claims for an increased evaluation for the residual scar of the right great toe, an increased evaluation for a residual scar from a laceration to the right index finger, service connection for a right hand and thumb disability and TDIU. The Veteran appealed the denial of service connection for a left foot disorder to the U.S. Court of Appeals for Veterans Claims (Court). In February 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties which requested that the portion of August 2011 decision that denied entitlement to service connection for a left foot disorder be vacated and remanded. The appeal has now returned to the Board for further development. As for the claims the Board previously remanded in August 2011 to the RO (via the Appeals Management Center (AMC)) for increased ratings for the scar of the right great toe, scar of the right index finger, service connection for a right hand and thumb disability, and a TDIU, these matters remain under evidentiary development, and are not the subject of any current appellate review or adjudication. However, as indicated in the remand section below, the Board is directing that the RO/AMC complete adjudication of these additional matters. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of points raised in the JMR, and review of the claims file, the Board finds that further action on the claim on appeal is warranted. The Veteran claims that she has a left foot disorder incurred in service or aggravated by service-connected disabilities. The Veteran's service treatment records (STRs) do not document any complaints of or treatment for bunions on the left foot. Instead, the Veteran's STRs indicate that the Veteran entered the active military service with "asymptomatic pes planus of the left foot," as recorded at her 1979 military entrance examination. Significantly, in March 1983, the Veteran was seen for pain to the medial aspect of the left foot just proximal to the left great toe. She was diagnosed with left pes planus and prescribed arch supports. In July 1983, the Veteran was evaluated for complaints regarding her left foot. The Veteran was diagnosed with "left foot pes planus/falling arches." The Veteran was provided with orthopedic arch support for her left foot. In October 1986, the Veteran was treated for a left ankle sprain with a possible foot injury. The Veteran was diagnosed with a "slowly resolving sprain." Significantly, the Veteran consistently denied any history of foot trouble on reports of medical history completed during active service and corresponding examinations always described the lower extremities and feet as normal. See June 1984, July 1985, October 1986, January 1990 annual examinations and reports of medical history. Indeed, at her April 1993 military separation examination, her left foot was found to be normal. Her active military service ended in June 1993. Post-service, the Veteran's June 1999 National Guard periodic examination revealed normal feet. Significantly, the Veteran denied any foot trouble on the June 1999 report of medical history. While she was treated during her National Guard service for the right great toe, there was no evidence she complained or treated for the left foot. On an October 2003 annual medical certificate the Veteran specifically reported treatment and medical problems involving the right great toe but did not report any other treatment or limitations. An April 2004 report of medical history reflected a history of foot trouble but the description only noted "right foot large toe has pain callus (hallux limitus)." There was no mention of the left foot on that form. In April 2008, the Veteran was afforded a VA examination to determine the nature and etiology of her claimed left foot disorder. Following a physical examination of the Veteran, an x-ray of the left foot, and a review of the claims file, the VA examiner diagnosed the Veteran with a bunion of the left foot. The VA examiner determined that the Veteran did not have any other foot deformity of the left foot. The VA examiner then concluded that, "[i]t is not likely this left foot is related to the right foot or service, but rather a natural occurring phenomenon." However, the August 2008 is inadequate. The JMR noted that the August 2008 examiner failed to provide adequate rationale to support the medical opinion. The examiner did not specifically address the Veteran's diagnosis of asymptomatic pes planus upon enlistment or in-service complaints associated with the left foot and ankle. Additionally, the examiner did not give a rationale as to why the Veteran's left foot disorder was not aggravated by her service-connected right foot disability. The Board finds another VA examination is necessary in order to obtain a detailed rationale to support the medical opinion, to include specific facts, evidence, and medical principles relied upon to support the medial opinion. 38 C.F.R. § 4.2 (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). Finally, while on remand, updated treatment records must be obtained. VA's duty to assist includes obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(1), (2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the appellant's claims file, are in the constructive possession of the Board and must be considered). Accordingly treatment records from the Cleveland VA Medical Center from September 2009 until the present should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names and addresses and dates of treatment of all medical care providers, VA and non-VA, that have provided any treatment pertinent to her left foot disorder claim. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. The RO/AMC should specifically request updated VA outpatient treatment records from the Cleveland VA Medical Center from September 2009 until the present. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review should be conducted of the electronic file, and if documents contained therein are deemed to be relevant to the issue on appeal and are not duplicative of those already found in the paper claims file, action should be taken to assure that those records are made available (whether by electronic means or by printing) to any medical provider who is asked to review the claims file and provide medical opinions in conjunction with the development requested herein. 3. The Veteran should be scheduled for an appropriate VA examination to ascertain the nature and etiology of her claimed left foot disorder. It is imperative that the claims folder be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished and all special tests and clinical findings should be clearly reported. Prior to the examination, the claims folder and a separate copy of the Remand must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner should provide an opinion or comment as to each of the following as noted: a. whether it is at least as likely as not (50 percent probability or higher) that any current left foot disability is causally related to any event or incident in service. The examiner must comment upon the diagnosis of asymptomatic pes planus upon enlistment and the in-service treatment associated with the left foot and ankle, including treatment for tenderness of the medial area of the left foot in March 1983 and July 1983 and the diagnosis of left ankle sprain with a possible foot injury in October 1986. b. whether it is at least as likely as not (50 percent probability or higher) that any current left foot disability was caused or aggravated (permanently worsened) by any other service-connected disorder, including specifically a right foot disability. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 5. The RO/AMC is reminded of the need to ensure completion of all previously specified development on the Veteran's claims for increased ratings for the scar of the right great toe, scar of the right index finger, service connection for a right hand and thumb disability, and a TDIU from the August 2011 Board remand. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If the benefit sought remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant 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 Supp. 2012). _________________________________________________ HOLLY SEESEL Acting 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) (2012).