Citation Nr: 1340658 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 07-04 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for residuals of an amputated left first toe. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran has verified active service from May 28, 1970 to September 11, 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran and his spouse testified before the undersigned at hearing that was held at the RO in March 2008. A transcript of that hearing is of record. At this March 2008 hearing, a private attorney from South Carolina Legal Services represented the Veteran. Significantly however, in correspondence dated in April and June 2011, this private attorney made clear that the Veteran had not retained the South Carolina Legal Services as counsel for his benefits claim. Although the Veteran has since authorized another private attorney, Mr. David Russotto, to view the contents of his claims folder (see the Veteran's April 26, 2012 Request for and Consent to Release Information), he as not submitted a new VA Form 21-22a authorizing Mr. Russotto, or any new attorney, to serve as his representative in this appeal. As such, the Veteran is proceeding pro se. FINDINGS OF FACT 1. The Veteran's May 1970 enlistment examination noted that the Veteran entered service with an amputated left first toe. 2. The Veteran's contention that he lost his left first toe during a period of active duty service is contradicted by the probative evidence of record, and is not credible. 3. As the record currently exists, entitlement to service connection for residuals of an amputated left first toe on the basis of in-service aggravation cannot be established or confirmed without a current VA examination. 4. The Veteran failed to report, without a showing of good cause, for a VA examination scheduled in April 2012 in connection with his reopened service-connection claim for residuals of an amputated left first toe. CONCLUSION OF LAW The claim for entitlement to service connection for residuals of an amputated left first toe is denied. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.655(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he injured his left first toe during a tour in Vietnam. Specifically, he claims that while he was pinpointing snipers with a small group in Da Nang, he stumbled upon something protruding from the ground that plunged into his foot and caused him to fall. He initially thought that he had been shot, but learned upon transportation to sick bay that he had lost his left first toe. As a preliminary matter, the Board previously remanded the appeal to address a conflict in the record as to his dates of active service. Specifically, the Veteran's DD Form 214 indicates that the Veteran served on active duty from May 28, 1970 to September 11, 1970, with no overseas service, and these dates are supported by his service records. However, the Veteran contends that he served until 1972, including a tour in Vietnam. Moreover, the claims folder indicates that on September 3, 2002, the National Personnel Records Center (NPRC) issued a NA Form 13038, Certification of Military Service, which reflects he served on active duty from May 28, 1970 to September 11, 1972 (two years past the date of discharge noted on the DD Form 214). In the October 2010 remand, the Board instructed the agency of original jurisdiction (AOJ) to reconcile the conflict surrounding the Veteran's service dates. In December 2010, the AOJ contacted the NPRC to address the above-cited discrepancies in the record. In February 2011, the NPRC responded that the service dates reflected on the September 2002 NA Form 13038 were incorrect, and confirmed that the Veteran had honorable active service from May 28, 1970 to September 11, 1970, with no overseas service. In a March 2012 decision, the Board reopened the claim for service connection, which had been previously finally denied, but remanded for a VA examination. The matter is now back from remand. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Concerning VA's duty to notify, the record reflects that VA provided the Veteran with the notice required under VCAA by letters dated in February and March 2006. Concerning VA's duty to assist, VA has also obtained the Veteran's service treatment records, service personnel records, post-service VA treatment records, and his and his spouse's own lay statements and testimony. The Veteran has identified no outstanding evidence, to include any other medical records, that could be obtained to substantiate his claim, and the Board is also unaware of any such outstanding evidence. Pursuant to the Board's March 2012 remand instructions, VA also scheduled the Veteran for a VA examination in April 2012 to address whether his left great toe disability was aggravated beyond its natural progression during his period of active duty service. The Veteran did not report to this examination, and has failed to provide a reason for his absence. The Veteran was also unresponsive to multiple phone call messages left from the Appeals Management Center (AMC) on May 1, May 21, and May 31, 2012 in an effort to find out why he did not appear for his scheduled examination. Following the issuance of an April 2013 Supplemental Statement of the Case (SSOC), which specifically referenced the fact that the Veteran failed to report to his examination, the Veteran submitted a completed request for expedited processing by the Board. The Court of Appeals for Veterans Claims (the Court) has held that VA's duty to assist a claimant in developing the facts and evidence pertinent to a claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In light of the Veteran's failure to report to his medical examination, his unresponsiveness to VA phone calls, and his explicit request to have the adjudication of his claim expedited without requesting that his examination be rescheduled, the Board is convinced that further efforts to schedule the Veteran for a compensation and pension examination addressing his claim would be futile. The Board accordingly finds that a remand to afford the Veteran an additional VA examination is not required, and VA's duty to assist with respect to obtaining examinations or opinions as to the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Analysis In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). The Veteran asserts that he served on active duty until 1972, and that during this service, he lost his left first toe in Vietnam. As discussed in its March 2012 decision and remand, the Board has exhausted all efforts to verify the Veteran's description of what happened in service to ensure that his complete service treatment records have been obtained. As noted above, the NPRC has confirmed that he only served on active duty from May 28, 1970 to September 11, 1970, with no foreign service. In addition, with respect to the Veteran's left toe injury in particular, although the Veteran claims that he lost his toe in Vietnam, his May 18, 1970 enlistment examination reflects that upon entry into active duty, he already had a "traumatic amputation [of the] distal phalanx left big toe" at that time. Because the Veteran's claims are directly contradicted by the objective evidence of record verifying his dates of service, the nature of his service, and the fact that his toe amputation occurred prior to enlistment, the Board accordingly finds the Veteran's descriptions of sustaining an in-service injury to his left first toe in Vietnam to be not credible. As such, service connection is not warranted based on in-service incurrence. That stated, service connection can still be established based on in-service aggravation of a preexisting disability. Indeed, cases in which a condition is noted on entrance into service are governed by the presumption of aggravation contained in 38 U.S.C. § 1153. This statute provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2013). In its March 2012 remand, the Board noted that on July 21, 1970, the Veteran complained in service of "pain [in the] big toe [of his] left foot," and reported that his left great toe had been cut off by a lawn mower. After physical examination, which revealed no swelling but pain upon palpation, he was referred to a podiatrist. An x-ray obtained on July 22, 1970 appeared to demonstrate that the phalanx was well rounded, and the Veteran was returned to duty. Based on this evidence, the Board determined in March 2012 that an open medical question existed as to whether the Veteran aggravated his preexisting toe disability during service. Remand was therefore required to obtain a current VA examination and opinion before entitlement to service connection could be established. As noted above, the Veteran failed to report to his scheduled VA examination in April 2012. The provisions of 38 C.F.R. § 3.655(a) and (b) (2013) address the consequences of a claimant's failure to attend scheduled medical examinations. In pertinent part, the regulations provide that, when entitlement to a benefit cannot be established or confirmed without a current VA examination, and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be denied. As noted in its March 2012 remand and above, the Board has made clear that entitlement to service connection for residuals of a left first toe amputation could not be established without a current VA examination. Indeed, the question of whether the Veteran's in-service complaints of toe pain represented an increase in severity or aggravation of the Veteran's preexisting toe disability is a medical question that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). As such, remand to afford the Veteran such an examination was appropriate and necessary. Significantly, the Veteran has provided no explanation of "good cause" as to why he did not report to his April 2012 VA examination. In fact, since April 2012, the Veteran has submitted no statement of argument as to any aspect of his claim. The Board adds that there is no indication within the record suggesting that the Veteran failed to receive notice of the date of the examination, and the Veteran makes no such assertion. Indeed, the record includes a March 27, 2012 letter from the AMC to the Veteran at his current address noting that the VA medical center nearest him would schedule him for an examination, and instructing that if he could not keep the appointment or wanted to be re-scheduled, he should contact the medical facility as soon as possible. This letter was not returned to VA as undeliverable. A subsequent VA Medical Center Examination Inquiry report referenced the Veteran's current address at the top of the page, noted that an examination was requested on March 27, 2012, and indicated in ink that the Veteran failed to report to this examination scheduled for April 25, 2012. Significantly, in April 2013, the AMC also sent an SSOC to the Veteran's current address referencing his failure to report to the examination, and the Veteran promptly responded with a request for expedited processing. He did not ask that this examination be rescheduled. Finally, and crucially, there is no question that the Veteran's claim is in fact a "reopened claim for a benefit which was previously disallowed" as identified in 38 C.F.R. § 3.655(b). The RO denied the Veteran's original service-connection claim for toe amputation residuals in an unappealed August 2004 rating decision. Following a subsequent request for benefits, the Board reopened the Veteran's claim in its March 2012 decision, and remanded it to the AMC so that the above-referenced examination could be scheduled. The provisions of 38 C.F.R. § 3.655(b) specifically direct that where a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, that claim shall be denied. See Turk v. Peake, 21 Vet.App. 565, 569-70 (2008) (noting that VA's regulation divides claims into two categories-"'[o]riginal compensation claims'" that are to be decided "based on the evidence of record"; and "'any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase,' which are to be summarily denied"). The Veteran was duly informed of the consequences of a failure to report in a March 27, 2012 letter, which specified that his claim would be rated based on the evidence of record, or even denied, if he did not report for his examination without a showing of good cause. In sum, because the Veteran's reported history of injuring his toe in service is not credible, entitlement to service connection for left first toe amputation residuals on a theory of in-service incurrance and direct causation is not warranted. Further, as discussed above, entitlement to service connection for amputation residuals on the theory of in-service aggravation cannot be established without a VA examination. Because the Veteran failed to report to his scheduled VA examination without supplying an explanation of good cause, and because this examination was scheduled in conjunction with a reopened claim for a benefit that was previously disallowed, the Veteran's reopened claim must be denied pursuant to 38 C.F.R. § 3.655(b). ORDER Service connection for residuals of an amputated left first toe is denied. ____________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs