Citation Nr: 1342833 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-20 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable evaluation for left foot plantar wart and calluses. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1981 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, denying, among other issues, the claim currently on appeal. In addition to the physical claims file, there is an electronic paperless file (Virtual VA) associated with this claim. The Board has reviewed the additional information, including an October 2013 "Appellant's Brief" from the Veteran's representative, in association with this claim. 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 Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that the Veteran was originally granted service connection for a plantar wart and calluses of the left foot in a September 2002 rating decision. A VA examination report from January 2002 reflected a wart on the plantar surface of the left foot behind the third toe. There were also calluses on the "lower left foot." More specific information regarding the degree and location of the calluses was not provided. However, it was noted that there was no present functional impairment. In February 2008, VA received a claim from the Veteran seeking an increased rating for his left foot. The Veteran noted that he had surgery performed on the left foot in August 2006 and that he had been treated for pain with walking and standing. He also indicated that he continued to scrape calluses from the bottom of his feet. He also asserted that since his August 2006 surgery, he had not been able to bend his second toe on the left foot "which [was] now deforming over the left third toe." The record reflects that the Veteran underwent a second osteotomy of the second metatarsal toe on the left foot in April 2008. The Board notes that the Veteran alleged in his April 2010 appeal to the Board that his two prior surgeries were needed because of his calluses and that his calluses restricted his mobility in his left foot. The evidence of record does not presently support the Veteran's theory, however. He was afforded a VA examination in July 2008. According to the examination report, the Veteran suffered from a callous of the left foot at the site of osteotomy hammertoe. The examination report indicates that the Veteran was having painful callus buildup at the site of pressure on his left foot. The examiner did not offer an opinion as to whether it was the Veteran's service-connected calluses of the left foot resulting in this pain, or calluses associated with a hammertoe deformity of the second left toe. The Veteran is not service-connected for a hammertoe deformity. The Veteran underwent an additional VA examination of the left foot in November 2008. The Veteran was again noted to be suffering from a hammertoe deformity of the left second toe. However, the examination report also notes hammertoe deformities of toes 2 through 4. It was also noted that the Veteran wore shoe inserts because of callus formation on the left foot. X-rays from May 2008 were reviewed, revealing an old resection of the second proximal phalangeal head with mild degenerative joint disease of the first metatarsophalangeal joint. The examiner opined that the Veteran's hammertoe deformity of the left foot was less likely as not caused by or a result of his service-connected plantar warts and calluses. The examiner explained that the Veteran had documentation of plantar warts and calluses below the third toe and not the second toe. However, as already noted, the examiner then proceeded to state that the Veteran had bilateral hammertoes of digits two through four. As such, the examiners opinion does not appear to be adequate, as there was no opinion offered regarding the additional hammertoes. In light of the above, the Board finds that the Veteran should be scheduled for a current VA examination of the left foot. Initially, the Board notes that the Veteran's representative asserted in March 2013 that the Veteran's left foot plantar warts and calluses resulted in functional loss and that the disease had further developed since his last examination of November 2008. The Veteran also asserted in his April 2010 appeal to the Board that his calluses had resulted in scar tissue that was restricting his normal mobility and affecting his gait. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). As it has been more than 5 years since the Veteran's last examination, and since he and his attorney have provided statements suggesting a potential worsening in this disability, the Veteran should be provided the opportunity to appear for a more recent examination. In addition, it is not presently clear what symptomatology is associated with the Veteran's service-connected plantar wart and calluses of the left foot (if any). While the November 2008 VA examiner opined that hammertoes were not secondary to the Veteran's service-connected condition, the examiner relied on the fact that there was documentation of plantar warts and calluses below the third toe and not the second toe. However, in the same paragraph, the examiner indicated that the Veteran actually suffered from hammertoes of toes two through four. As such, an opinion should be offered regarding etiology that takes this into consideration. The examiner should also identify any other symptomatology associated with this condition, including pain, scar tissue, impaired mobility and functional loss. Finally, the most recent record of VA medical treatment associated with the claims file is dated April 2010. Records prepared since this time should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Records of VA medical treatment prepared since April 2010 should be obtained and associated with the Veteran's claims file, either physically or electronically. 2. The Veteran should be scheduled for a VA examination of the left foot before an appropriate physician. His claims file and a copy of this remand must be made available for review by the examiner in conjunction with this examination, and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies, and describe in detail all symptomatology associated with the Veteran's service-connected left foot plantar wart and calluses, including scarring, pain/tenderness or impairment of gait. The examiner should also offer an opinion as to whether it is at least as likely as not that any of the Veteran's hammertoes of the left foot were either caused by, or permanently aggravated by, his service-connected plantar wart and calluses of the left foot. Finally, the examiner should offer an opinion as to whether there is any functional impairment resulting from the Veteran's service-connected left foot plantar wart and calluses. If so, the examiner should describe in detail the impact of this condition on the Veteran's activities of daily living and employment. A complete rationale must be provided for all opinions offered, and the examiner must consider and discuss the lay assertions of the Veteran when formulating an opinion. 3. Then, the RO/AMC should review the claims file to ensure that the Board's remand directives have been followed. If the Board's remand directives have not been followed, then the RO/AMC should take any necessary action to ensure substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, review all evidence received since the last prior adjudication and readjudicate the appellant's claim. If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and his service representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). (CONTINUED ON NEXT PAGE) 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).