Citation Nr: 1603240 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 11-21 258A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a toenail fungus. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from September 1989 to September 1992, August 2005 to November 2006, and February 2009 to March 2010. This appeal to the Board of Veterans' Appeals (Board) is from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran provided oral testimony at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is of record. In June 2015, the Board remanded the case for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the June 2015 remand, the Board noted that the opinion obtained in December 2010 was inadequate because the VA examiner used the wrong standard when offering an opinion. The case was remanded, in part, to obtain a better opinion. In October 2015, a different VA physician indicated that it was less likely than not that the Veteran's toenail onychomycosis was incurred or aggravated by his active service. He explained that there was medical evidence showing that onychomycosis existed prior to the Veteran service in 2005, and that there was no evidence of aggravation. Although reference was made to treatment for onychomycosis in 2008 and 2013, the only rationale concerning the aggravation was that there was no evidence of the onychomycosis at the current time. There was also no discussion of whether the Veteran's use of military boots during his deployments could have lent to an aggravation of his toenail disorder. Accordingly, the case is REMANDED for the following action: 1. Using the Veteran's personnel records, to include those found in the DPRIS Response received September 17, 2015, make a list containing the periods of ACDUTRA. This list must then be given to the VA physician in conjunction with his review of the file. 2. Then make the Veteran's electronic files (VBMS and Virtual VA) and a copy of this remand available to the October 2015 VA examiner in order for the physician to provide a supplemental opinion. The entire file must be reviewed and a notation to this effect must be noted in the report. Based on the records, the clinician must provide the following opinions: a) Is the Veteran's toenail fungus at least as likely as not related to his first period of active duty service or any period of ACDUTRA? b) If the toenail fungus is not related to the first period of service or ACDUTRA, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the toenail fungus pre-existed his subsequent period of active duty service in Iraq from August 2005 to November 2006 and again from February 2009 to March 2010? Specify this evidence if it exists. c) If the toenail fungus preexisted service, is there clear and unmistakable evidence that it was not aggravated in service beyond the natural progression of the condition? * The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. * The physician is reminded that there are different degrees of certainty needed when providing the different medical opinions that must be followed. d) In rendering the opinions, the examiner should consider the following: * The Veteran asserts that prior to 2002 he self-treated the toenail fungus. * The Veteran asserts the toenail fungus began after he separated from service in 1992 and had progressively worsened. He also attributes the nail fungus to wearing military boots in hot climates and poor hygiene sharing showers with others. * A March 2002 treatment record shows the Veteran was seen by a physician well-known to him. He had complaints of a possible toenail fungus and the physician noted that the Veteran had been in the military for quite some time, wearing combat boots, and that the problem has progressed over time. * A May 2015 statement from M.M. states he was deployed with the Veteran from 2005 to 2006 and he recalled the Veteran had a toenail fungus during that time. * The Veteran stated the toenail fungus was treated with Lamisil during his 2005 to 2006 service and treatment records show he had liver panels in May and June 2006. * At various times, treatment records show the presence of the toenail fungus in the right great toe, bilateral fifth toes, and second toe on the right foot. See treatment records in March 2002, June 2010, and June, September, and December 2013. * The examiner is advised the Veteran is competent to report his symptoms and when they occurred. Similarly, M. M. is competent to report that the Veteran had toenail fungus while they service together in 2005 and 2006. Their statements may not be disregarded merely because there are no contemporaneous medical records. e) The examiner must provide complete explanations for the rationales that support his opinions, with reference to evidence as needed. If an opinion cannot be provided without resorting to mere speculation, he shall provide a complete explanation stating why this is so. In so doing, the physician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. 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 2014). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).