Citation Nr: 1343390 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 10-42 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a left foot disorder, to include a congenital defect, left fifth toe. REPRESENTATION Appellant represented by: Heather E. Vanhoose, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1965 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Huntington, West Virginia, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for left foot pain, and congenital defect, left fifth toe, claimed as foot pain. The Veteran testified before the undersigned Veterans Law Judge at a Board hearing held via video teleconference in Huntington, West Virginia in August 2012. A copy of the hearing transcript has been associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either substantively duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 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 The Board finds that additional development is warranted to address the merits of the Veteran's claim. See 38 C.F.R. § 3.159. The Veteran served on active duty from July 1965 to July 1969. He contends that he has a current left fifth toe disability as a result of being required to continuously tape his fifth toes down to his other toes during his years in the military and due to the strenuous physical activities performed in connection with his active service. He reports having to wear narrow shoes and boots and having sharp pain and numbness in his left foot every since basic training. The veteran further alleges that he went to sick bay multiple times at Fort Knox and while in Germany for his foot discomfort. He also gave credible testimony that he sought treatment in the 1970's or the 1980's from Dr. McClellan in West Hamlin, West Virginia for his feet. With regard to the Veteran's service treatment records, his July 1965 enlistment examination noted a congenital overlapping fifth toe. There are no other records documenting complaints or treatment for the Veteran's left foot during service. The Veteran was provided with a VA feet examination in August 2009. The examiner reviewed the claims file and documented a history of the claimed disability provided by the Veteran. The history included the report of pain while in Germany, that the Veteran finished basic and AIT with no complaints, that during the military his fifth toes rose up on the fourth toes and made fitting boots difficult, that he saw a foot doctor while in Germany twice for the pain in his left foot, that he did a lot of jumping down from trucks while in the military, that the foot problem went after for many years after service and resurfaced during the late 1980's, and that he suffered a left foot fracture in 1984 when he fell from a crane at work which was treated with just rest. On examination, the examiner found no evidence of painful motion, swelling, instability, weakness, or abnormal weight bearing. Tenderness at the point of the second interspace was noted. Additionally, the examiner noted that the fifth toe on the left foot rides up slightly above the normal level, however, it was noted that the Veteran reported that it had improved since the military. The examiner diagnosed neuroma at the second interspace and opined that the portion of the left foot that has the diagnosis of neuroma is not related to his congenital problems with the fifth toe riding over the fourth toe. The examiner supported the opinion by stating that there were no records to verify any foot complaints during service, and that a recent evaluation by a VA podiatrist gave a history of the pain similar to the neuroma for the last one and a half years and that the other pain in his feet is thought to be related to his back and not his feet. The Board is concerned that the August 2009 VA opinion is inadequate because it failed to address the Veteran's reported history of a being required to continuously tape his fifth toes down throughout service and did not clearly distinguish between whether the Veteran has a congenital disease or defect. In light of the above, the Board finds that a remand is necessary so that an addendum VA medical opinion may be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (finding that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one). As noted, the Veteran testified that he sought treatment for his left foot in the 1970's or 1980's from Dr. McClellan in West Hamlin, West Virginia. It is unclear whether these records are still available at this time, however an attempt to retrieve them on the Veteran's behalf must be made. Finally, the Board notes that the most recent VA treatment records associated with the Veteran's claims file are dated in April 2010. An attempt to obtain updated VA treatment records in reference to the Veteran's left foot disability must be made. Accordingly, the case is REMANDED for the following action: 1. Obtain recent VA treatment records that are not already of record and associate them with the claims file. All efforts must be documented in the record, and must include specific requests to search and/or recall any archived or otherwise stored records. 2. Contact the Veteran and request a properly executed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for all private care providers, to include Dr. McClellan, that provided treatment for his left foot. Upon receipt of such, VA must take appropriate action to contact the indentified provider(s) and request complete records for treatment and proceeding related to the Veteran's skin condition. Specifically, VA must request a complete set of medical records from Dr. McClellan. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. After completion of the above, forward the claims file to the August 2009 VA examiner. If the examiner is no longer available, please send to another qualified medical professional. The complete claims folder must be provided to the examiner for review in conjunction with the August 2009 VA examination and the examiner must note that the claims folder has been reviewed. The examiner should respond to the following inquiries: a.) Is the Veteran's overlapping fifth toe a congenital disease, congenital defect, or the result of an acquired disease or injury? In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should expressly consider the following definitions provided by VA's General Counsel: The term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defect" would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature. b.) If the examiner determines that the overlapping fifth toe is a disease or injury, the following opinion should be provided: Did the condition undergo a permanent increase in severity during his military service beyond the natural progress of the disease, to include as a result of being taped down and/or strenuous physical activity therein? c.) If the examiner determines that the overlapping fifth toe is a defect, the following opinion should be provided: Is there a 50 percent or better probability that the Veteran developed superimposed pathology as a consequence of the taping of his toe, strenuous physical activity, or otherwise as a result of military service? d.) For any other left foot or toe disorder, is there a 50 percent or better probability that any other left foot or toe disorder is related to any disease or injury in service, to include as a result of strenuous physical activity and/or having his toe taped down? 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. If the examiner believes that any opinions cannot be made without an additional examination of the Veteran, then such an examination should be scheduled. 4. After the above development has been completed, readjudicate the issue on appeal, considering all evidence of record. If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, as appropriate. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL LANE 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).