Citation Nr: 1338027 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 12-17 771 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for bilateral hammertoes. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD W. Doernberg, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1958 to May 1961 and from December 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA). Regional Office (RO) in Portland, Oregon. The Virtual VA claims processing system contains VA treatment records from March 2010 to December 2012, but the RO reviewed such evidence in a statement of the case and supplemental statement of the case. A review of the Veterans Benefits Management System does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) was raised by the Veteran in December 2010, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Board notes that the Veteran submitted a July 2013 statement containing lay evidence and arguments in support of his appeal subsequent to the January 2013 supplemental statement of the case. However, because the Veteran's claim is remanded, the Board finds that he is not prejudiced by the fact that the RO did not consider this evidence in the first instance. 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 was afforded a VA examination in May 2010, and an additional medical opinion was obtained in June 2010. The examiner opined that it was less likely that the Veteran's hammertoes were caused by his service-connected pes planus; however, he did not address whether his hammertoes may have been aggravated by that service-connected disability. Moreover, the Veteran has asserted that his hammertoes could be secondary to his service-connected metatarsalgia, yet the examiner did not discuss whether there could be such a relationship between those two disorders. Therefore, the Board finds that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any hammertoes may be present. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his hammertoes. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. The RO/AMC should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral hammertoes that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's current bilateral hammertoes are related to his military service. He or she should also opine as to whether it is at least as likely as not the Veteran's bilateral hammertoes were either caused by or permanently aggravated by his service-connected pes planus and metatarsalgia. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable 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 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. 2013). _________________________________________________ J.W. ZISSIMOS 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) (2013).