Citation Nr: 1304448 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 11-11 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for right foot condition. ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that at certain points during the appeal the issue has been characterized as whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for right foot condition. However, the record shows that after each rating decision denying service connection for right foot condition, the Veteran submitted a timely notice of disagreement (NOD) and he was not issued Statements of the Case. As such, the Board finds that this appeal stems from the July 2006 rating decision and has thus identified the issue on appeal as stated on the title page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran reports that service connection is warranted because he has had foot problems since service. Service treatment records (STRs) show that the Veteran dropped a wall locker drawer on his right foot in April 1977, leading to contusion and painful great toe. X-rays were negative. Throbbing pain increased over the next three days and was unrelieved by pain pills. A large subungual hematoma was diagnosed on the right great toe and inflammation was seen around the nail bed. The toe was swollen, and the physician assessed trauma with pressure from the hematoma. The STRs also show that in March 1978, the Veteran was diagnosed with tinea pedis. Post-service record show complaints of foot pain, swelling, needing a cane to ambulate, deformed toenails and chronic ingrown toenails, and arthritis, as well as diagnoses of onychauxis right hallux nail, onychomycosis, nail deformity, and nail hypertrophy. In 2007, private physician Dr. A. performed a partial matrixectomy on the right great toe. Throughout the appeal period, the Veteran has consistently attested that he has had pain, nail deformities and ingrown nails since the injury in service. A VA treatment record dated July 2008 suggests that his current disabilities may be secondary to damage done to the nail matrix in service. The Veteran was provided a VA examination in May 2011. Based on review of the VA examination report, the Board finds that it is inadequate. The examiner diagnosed degenerative joint disease (DJD) of the right great toe, onycomycosis, and bilateral hallux valgus of all toes per x-ray. The examiner opined that these conditions were not caused by or a result of any injury in service, giving the only the following rationale: "[Lack] of continuity of care unable to relate 1977 injury to [current] foot problem." "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner stated that he reviewed the claims file and medical records but his only reference to in-service events is the vague note: "had injury in service." The examiner does not address why the current conditions are not related to the specific injuries in service (the right toe injury and tinea pedis). Nor does he address the February 2007 diagnosis of chronic ingrown toenail, though it is clearly noted in the record during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, the examiner does not discuss the Veteran's lay statements regarding the onset of symptoms and continuity of symptomatology. Finally, the examiner based his rationale on a lack of documentation of continuity of care in the claims file between service and the February 2006 claim. The lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a Veteran's lay evidence; however, the lack of such records does not, in and of itself, render lay evidence not credible. Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (2006). While the record is negative for post-service treatment for the Veteran's right foot until 2006, that fact alone does not render not credible his statements that he has had right foot symptomatology since his military service. Here, the negative medical opinion did not give due consideration to the Veteran's competent and credible account of symptomatology since service, or to the medical records in the claim file. When VA undertakes the effort to provide an examination, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that that VA examination report does not discuss the claimed disabilities in sufficient detail or provide an adequate rationale so that the Board's evaluation of them is an informed determination. Thus, the Board has no discretion in the matter and must remand the claim for a new examination. Finally, the most recent VA treatment records in the claims file are dated April 2010 and the most recent private treatment records are dated February 2007. The Veteran may have received additional treatment in the intervening time. Therefore, on remand, relevant VA treatment records from the Durham VAMC dated from April 2010 to the present should be obtained for consideration in his appeal, physically or electronically. The Veteran should also be given the opportunity to identify any private providers who have treated him for his right foot since February 2007. Identified relevant records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records, physically or electronically, from the Durham VAMC dated from April 2010 to the present that are relevant to the Veteran's right foot. 2. Request that the Veteran identify any private healthcare providers who treated him after February 2007 for his right foot. After securing any necessary authorization from the Veteran, all identified treatment records dated from February 2007 to the present should be obtained. In light of the forthcoming changes to the 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge or were contemporaneously informed of the onset, chronicity and/or severity of his right foot symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After completing the above, schedule the Veteran for a VA examination in order to determine whether his current right foot disability that is related to or had its onset in service. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should a) Identify all of the Veteran's current right foot diagnoses. b) Provide an opinion as to whether each of the Veteran's right foot diagnoses is at least as likely as not related to his active service, to include his right foot injury and tinea pedis. The examiner should provide the reasoning for the conclusions reached. In doing so, the examiner must acknowledge and discuss the Veteran's competent report of having a continuity of right foot symptoms in and since service. All findings and conclusions must be set forth in a legible report. 5. Then readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative must be furnished a supplemental SOC and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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 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). _________________________________________________ STEVEN D. REISS 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).