Citation Nr: 1333094 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 04-07 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for bilateral fungus/onychomycosis, to include as due to exposure to Agent Orange. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2003 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The March 2003 rating decision denied a petition to reopen the previously denied claim of entitlement to service connection for bilateral pes planus, and the May 2009 rating decision denied the petitions to reopen the previously denied claims of service connection for rheumatoid arthritis and bilateral foot fungus/onychomycosis. The Veteran presented oral testimony in support of his bilateral pes planus claim before a Decision Review Officer (DRO) sitting at the RO in July 2004. A transcript of that hearing has been associated with the Veteran's VA claims file. In an October 2006 decision, the Board declined to reopen the claim of entitlement to service connection for bilateral pes planus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2009 Memorandum Decision, the Court vacated the October 2006 Board decision, and remanded the case to the Board for further proceedings consistent with its findings noted therein. Pursuant to the Court's January 2009 Decision, the Board remanded the Veteran's pes planus claim in June 2009 to provide adequate notification, which was subsequently done in a September 2009 letter from the RO in Nashville, Tennessee. Thus, there is compliance with the Board's June 2009 remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with). The Veteran's pes planus claim was returned to the Board. In May 2010, the Board remanded the Veteran's pes planus case to afford the Veteran a hearing before a Veterans Law Judge at his local VA office. A Travel Board hearing was held on September 2, 2010, in St. Louis, Missouri, before the undersigned, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2), and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board's May 2010 remand directives have been substantially complied with, and the Veteran's pes planus claim was returned to the Board. See Dyment and Stegall, both supra. In October 2010, the Board reopened the Veteran's three previously denied claims for service connection and remanded them for further evidentiary development. In March 2012, the Board again remanded the claims for further development. In a May 2013 rating decision, the Appeals Management Center (AMC) granted service connection for arthritis. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned, and the Veteran's representative specifically indicated in the July 2014 informal hearing presentation that there was no remaining appeal with regard to this issue. See 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012, 2013). The Board's March 2012 remand instructions and subsequent actions of the AMC will be further discussed below. The Veteran's claims have been returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Unfortunately, another remand is required concerning the Veteran's claims. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. In the March 2012 remand, the Board instructed the AMC to afford the Veteran a VA examination regarding his claims for service connection for foot fungus/onychomycosis and pes planus. Regarding the pes planus claim, the Board instructed the AMC to obtain an opinion as to whether the preexisting bilateral pes planus was aggravated (permanently increased in severity) beyond the natural progression by his military service; or whether any increase in symptomatology was not a permanent increase in severity but was in fact the early symptomatology of rheumatoid arthritis. Regarding the foot fungus/onychomycosis, the Board specifically instructed the AMC to obtain an examination which undertook a fungus culture and a potassium hydroxide preparation (KOH test) on each of the Veteran's feet. Additionally, the examiner was to provide an opinion as to whether (1) the Veteran currently has a bilateral foot fungus, to include onychomycosis; (2) if the Veteran currently has a bilateral foot fungus, to include onychomycosis, is such related to his military service, including whether his foot fungus/onychomycosis is proximately due to or proximately aggravated by rheumatoid arthritis, or whether it is due to Agent Orange exposure; (3) if rheumatoid arthritis aggravated (i.e., permanently worsened) the foot fungus/onychomycosis, the examiner should identify the percentage of disability which is attributable to the aggravation, if possible; (4) if the Veteran does NOT currently have a bilateral foot fungus, to include onychomycosis, is it possible that such a condition resolved and reoccurred as reflected in the Veteran's private treatment records from R.M.M., D.P.M., and the December 2010 VA skin examination report; and, (5) if the examiner finds that the Veteran had any instance of foot fungus/onychomycosis at any time during the pendency of the appeal, was such related to his military service, including whether his foot fungus/onychomycosis is proximately due to or proximately aggravated by rheumatoid arthritis, or whether it is due to Agent Orange exposure. The Veteran was afforded a VA examination in May 2012 by a rheumatologist, the examiner opined that "[t]aken altogether, it is more likely than not that his early symptoms of pain and swelling in his ankles/feet (and perhaps his hand) may in fact be the early manifestations of his RA rather than pes planus aggravated by military service." In October 2012, the AMC determined that a pes planus examination had not been conducted as per the Board's request. It was noted that a specific VA examination regarding the pes planus was needed. In a December 2012 another VA examination was conducted by the same examiner as the May 2012 examination. The examination focused on the Veteran's arthritis rather than his pes planus and the examiner simply reiterated the opinion provided in May 2012. Regarding the foot fungus/onychomycosis, the Board notes that an examination was conducted in May 2012 by a dermatologist. It does not appear from a review of the examination report, that the examiner conducted the requested fungus culture and a potassium hydroxide preparation (KOH test) on each of the Veteran's feet. Moreover, the examiner simply found that there was no current evidence of onychomycosis and failed to provide any of the opinions requested in the instance that onychomycosis was not currently present. As the examination reports rendered with regard to the claims on appeal did not adequately address the questions posed/follow the instructions by the Board, these claims must again be remanded for further examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In the March 2012 remand, the Board also instructed the RO/AMC to "print out any and all VA treatment records from the VAMC in St. Louis, Missouri, dated from February 2009 to the present and associate them with the Veteran's VA claims file." Rather than printing out the records, the RO/AMC reattached the records to the Veteran's Virtual VA file. The Board has reviewed the Veteran's Virtual VA file and sees that the records attached contain hundreds of pages. The Board's concern is the availability of the records to the VA examiner for their review and consideration. On remand, the examiners must be given access to the Veteran's Virtual VA file and the examiners must state that they have reviewed and considered the treatment records contained therein. Considering the above, the Board finds that new examinations are needed as the May 2012 and December 2012 VA examinations are deemed inadequate for appellate review. Indeed, the Board cannot be certain that all of the VA outpatient treatment records were considered by the examiners. The records were not printed as requested and the examiners did not state that they had reviewed the Veteran's Virtual VA file. Moreover, the opinions provided are not adequate as they did not fully address the questions instructed by the Board. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should afford the Veteran an orthopedic examination to determine the nature and etiology of his pes planus. The claim file should be made available for the examiner's review and access to the Veteran's Virtual VA file should be granted. The examiner must indicate that a review of the paper and Virtual files has been conducted. The examiner is requested to, among other things, obtain a detailed history of the Veteran's symptoms as observed by him and others since service, and review the record. Any and all testing deemed appropriate by the VA examiner should be performed. The examiner should then provide the following opinion: Was the Veteran's preexisting bilateral pes planus aggravated (permanently increased in severity) beyond the natural progression of the disability by his military service, or was any increase in symptomatology not a permanent increase in severity but was in fact the early symptomatology of rheumatoid arthritis? It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale should be provided for all opinions expressed. 2. The RO/AMC should schedule the Veteran for a dermatology examination to determine the nature and etiology of any existing bilateral foot fungus/onychomycosis. The claim file should be made available for the examiner's review and access to the Veteran's Virtual VA file should be granted. The examiner must indicate that a review of the paper and Virtual files has been conducted. The examiner is requested to, among other things, obtain a detailed history of the Veteran's symptoms as observed by him and others since service, and review the record. Any and all testing deemed appropriate by the VA examiner should be performed. Specifically, the VA examiner must perform a fungus culture and a potassium hydroxide preparation (KOH test) on each of the Veteran's feet. The examiner should then provide the following opinions: a) Does the Veteran currently have bilateral foot fungus, to include onychomycosis? If so, is such related to his military service, including whether his foot fungus/onychomycosis is proximately due to or proximately aggravated by rheumatoid arthritis, or whether it is due to Agent Orange exposure. b) If rheumatoid arthritis aggravated (i.e., permanently worsened) the foot fungus/onychomycosis, the examiner should identify the percentage of disability which is attributable to the aggravation, if possible. c) If the Veteran does NOT currently have a bilateral foot fungus, to include onychomycosis, is it possible that such a condition resolved and reoccurred as reflected in the Veteran's private treatment records from R.M.M., D.P.M., and the December 2010 VA skin examination report? The examiner is advised that the record shows multiple instances of diagnoses of onychomycosis. d) If the examiner finds that the Veteran had any instance of foot fungus/onychomycosis at any time during the pendency of the appeal, was such related to his military service, including whether his foot fungus/onychomycosis is proximately due to or proximately aggravated by rheumatoid arthritis, or whether it is due to Agent Orange exposure. e) If rheumatoid arthritis aggravated (i.e., permanently worsened) the foot fungus/onychomycosis, the examiner should identify the percentage of disability which is attributable to the aggravation, if possible. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A complete rationale should be provided for all opinions expressed. 3. The RO/AMC must ensure that the examination report complies with this remand and answers the questions presented in the examination request. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other development deemed appropriate, readjudicate the service connection claims in light of all information or evidence received. If any benefit sought is not granted to the fullest extent, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ LANA K. JENG 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).