Citation Nr: 1334623 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 08-34 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for any acquired foot disability, including secondary to service-connected removal of the great toenails. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran served on active duty from May 1972 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which continued a previous denial of service connection for bilateral Morton's neuroma in a May 2006 rating decision of the RO in Louisville, Kentucky. The case is under the jurisdiction of the Louisville RO. In the May 2006 rating decision the RO granted service connection for status-post removal of the great toenails, bilaterally, but denied service connection for bilateral Morton's neuroma with metatarsalgia (claimed as a foot condition, including ankle and nerve damage). The Veteran did not appeal the May 2006 RO rating decision to the Board, but he did, within the one-year appeal period, submit additional evidence, some of which pertained to the feet. See 38 C.F.R. § 3.160(c) (definition of pending claim); see King v. Shinseki, 23 Vet. App. 464, 467 (2010) (where the United States Court of Appeals for Veterans Claims (Court), in discussing 38 C.F.R. § 3.156, held that if new and material evidence had been submitted within the one-year appeal period following the issuance of a rating decision but had not been acted upon, the earlier claim could still be pending). In the February 2007 rating decision, the RO reopened the claim for service connection and denied it on the merits. The Board considered the claim for service connection on the merits in April 2011 and remanded it for further development. The Board noted in April 2011 that, although the RO characterized the issue as one for service connection for Morton's neuroma, the Veteran claimed service connection for foot problems in general, and given the various diagnoses of foot conditions shown by the evidence of record, the Board recharacterized the issue generally as shown on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should be construed based on the reasonable expectation of the non-expert claimant and the evidence developed in processing that claim). In addition, the Board notes that since the original decision was issued by the RO in May 2006, the RO has received additional Service Treatment Reports (STRs) and has associated these service department records with the claims files. Any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c) (2013). Such records include, but are not limited to additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records. § 3.156(c)(ii). As noted above, the case was previously before the Board where, in an April 2011 decision, the Board adjudicated other issues, re-characterized the issue on appeal and then remanded it for further development. Unfortunately additional development is called for. 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 The Veteran seeks service connection for painful bilateral foot symptoms and conditions. He has argued that ill-fitting boots during active service and ingrown nail excisions and subsequent infection during active service contributed to the current foot problems. His STRs document multiple ingrown toenail excisions and repeat excisions of several ingrown toenails, bilaterally, subsequent infections, and ultimately a complete removal of the toenails of the great toes, bilaterally. Although his separation examination report reflects that the examiner found normal feet, it is clear that the great toenails were missing at that time. This calls into question the accuracy of the separation examination report. The separation examiner did report, "marks and scars." There is no accompanying medical history questionnaire on which the Veteran might have reported continuing foot problems at the time of separation. VA has granted service connection for bilateral great toenail removal, on the basis of STRs that clearly showed that this occurred during active service. The Veteran's feet have been examined several times during the appeal period and the various examiners have offered multiple diagnoses pertaining to the feet. The diagnoses that have been offered during the appeal period include bilateral metatarsal-phalangeal joint degenerative arthritis, bilateral great toe arthritis, gout, bilateral plantar fasciitis, bilateral metatarsalgia, bilateral hallux valgus deformity, bilateral bunions, and Morton's neuromas. When read in context with previously-offered nexus opinions, the most recent VA compensation examiner, in May 2011, satisfactorily excluded the likelihood of service origin of bilateral metatarsal-phalangeal joint degenerative arthritis, bilateral great toe arthritis, gout, and bilateral metatarsalgia. However, the report is unclear concerning the etiology of bilateral plantar fasciitis, bilateral hallux valgus deformity, and bilateral bunions. The May 2011 examining physician did not mention plantar fasciitis, although this was found by VA podiatrists during the appeal period. Moreover, the physician did mention that bilateral hallux valgus deformities currently exist, but he nevertheless concluded that both feet are completely normal. Also, the physician did not address the etiology of the Veteran's bilateral bunions which are mentioned in out-patient treatment reports several times during the appeal period. Finally, concerning Morton's neuromas, the recent VA examiner dissociated these from active service on the basis of no evidence of a current Morton's neuroma. The examiner stated: My diagnostic impression of [the Veteran] is that he has normal feet other than that he has the absence of the bilateral great toenails. It is my medical opinion that the Veteran's condition of no bilateral foot disability was not caused by or the result of or etiologically related to the absence of the great toenails since there is no disability at this time and since he reported no symptoms and no diagnosis was found concerning the feet in his separation examination. In addition, there was no chronicity of care for his feet for many years following military service. While the physician found no evidence of Morton's neuroma, recent VA out-patient treatment reports available via Virtual VA reflect continued treatment in 2012 and 2013 for Morton's neuromas. Although the Board may not second-guess a medical expert based upon its own opinion, it need not accept the opinion of a physician whose opinion is not clear enough for a lay adjudicator to understand. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). For this reason, the May 2011 VA compensation examination report must be returned to the examiner for clarification. Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain any relevant VA treatment reports not already of record and associate them with the claims files. 2. Following the above, the AMC should return the May 2011 VA compensation examination report to the examining physician for an addendum opinion. 3. The Veteran may be re-examined, if necessary. The physician should review the pertinent medical history, especially of bilateral hallux valgus, bilateral bunions, and plantar fasciitis documented in the claims files and in Virtual VA. The physician is asked to note: (1) that although the separation examination report indicates normal feet, in fact, both great toenails had already been removed (which casts doubt on the accuracy of the separation examination report); and (2) that the medical history questionnaire that should accompany the separation examination report is missing. The physician is therefore asked to accept as credible the Veteran's claims and testimony of symptoms dating back to active service. The physician is asked to address whether it is at least as likely as not (50 percent or greater probability) that recurring Morton's neuromas, bilateral hallux valgus, bilateral bunions, and/or plantar fasciitis is/are the result of a disease or injury in active military service. If the answer above for each is "no," then the physician is asked to address whether it is at least as likely as not that recurring Morton's neuromas, bilateral hallux valgus, bilateral bunions, and/or plantar fasciitis was caused by, or aggravated by, the service-connected bilateral great toenail removal. The physician should offer a rationale for any conclusion in a legible report. If the requested physician is not available, a qualified substitute may be used. 4. After the development requested above has been completed to the extent possible, the AMC or RO should re-adjudicate the service connection claim. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given an opportunity to respond. The Veteran 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). Failure to report for a scheduled VA examination without good cause may have adverse consequences on this claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).