Citation Nr: 1316867 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 08-09 781A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an evaluation in excess of 10 percent for tinea pedis with onychomycosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to May 1980. This appeal to the Board of Veterans' Appeals (Board) arises from a March 2007 rating decision in which the RO, in Boston, Massachusetts continued the Veteran's 10 percent evaluation for service-connected tinea pedis with onychomycosis. The Veteran was notified of the rating decision in April 2007. In May 2007, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in March 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2008. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated January 2007 to August 2012. 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 Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Specifically, a remand is required to obtain a new VA examination. The most recent VA examination for the Veteran's foot condition was in December 2006, over 6 years ago. The Veteran has indicated in his May 2007 NOD that his foot condition has worsened, as his feet "bother him very much" and "itch all the time." In an April 2013 statement from the Veteran's representative, it was indicated that the Veteran had been administered systemic treatment by taking Lamisil daily. However, there was no indication of the time period for this treatment. Further, review of the Veteran's December 2006 VA examination and VA outpatient treatment records show that the Veteran has been administered a topical cream, Lamisil, to the affected areas, but there was no indication that this was a systemic treatment or that the Veteran is currently or has taken medication that affects his entire immune system. Last, in statements dated April 2013 and May 2013 from the Veteran's representative, it was indicated that the Veteran is requesting a new examination, namely due to the remoteness of the prior examination and an indication that the Veteran' s condition now affects 25 percent of his body, as opposed to the 10 percent indicated in the December 2006 VA examination. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Here, the Veteran has contended that his condition has worsened both due to use of systemic treatment and expansion of the affected areas. As such, a new examination is necessary to determine the Veteran's current severity in light of such claims and the length of time since the Veteran was last examined. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all outstanding VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After any new evidence has been associated with the claims file, the Veteran should be scheduled with an appropriate in-person examination to determine the current severity of the tinea pedis with onychomycosis. The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. In particular, the examiner should discuss the percentage of the body and the percentage of the area affected. Further, the examiner should discuss the types and duration of treatment used by the Veteran, to include an indication of whether such treatment is considered systemic. 3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must 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). _________________________________________________ WAYNE M. BRAEUER 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).