Citation Nr: 1603618 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-05 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals, left great toe injury, including, but not limited to, hallux limitus with local capsulitis, degenerative joint disease, hammertoes of the left second and third toes, Morton's neuroma, metatarsalgia, and hallux valgus, and excluding tinea pedis, manifested by onychomycosis, an additional skin disability of the left foot, or a disability manifested by twitching of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from June 1954 to August 1958 and from February 1961 to January 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for residuals, left great toe injury. The Veteran filed an October 1979 claim for service connection for a left foot injury, and such was granted by a January 1980 rating decision that awarded him service connection for slight deformity, left great toenail, effective February 1, 1979. By an August 1988 rating decision, the RO, based upon a January 1988 Board decision granting service connection for tinea pedis, recaptioned the Veteran's disability as tinea pedis, manifested by onychomycosis, right big toenail, slight deformity of the left big toenail, and hyperkeratosis, both feet, effective February 1, 1979. By a February 2006 rating decision, the Veteran's disability was again recaptioned as tinea pedis, manifested by onychomycosis, both feet, effective February 1, 1979. Service connection for a disability characterized by twitching feet and a chronic skin condition other than tinea pedis was denied by the Board in January 1988, and service connection for a skin condition was denied by the Board in October 1991 and January 2005. Service connection for athlete's foot was denied by a December 1982 rating decision, and the RO declined to reopen the Veteran's previously denied claim of entitlement to service connection for a skin disability in May 2014. Peripheral neuropathy of the left lower extremity associated with diabetes mellitus was granted by a September 2011 rating decision. Thus, the issue before the Board is captioned to reflect the current diagnoses related to the left toe or adjacent areas and exclude consideration of the foot disabilities already service-connected or denied in the past. In this regard, the Board considered whether new and material evidence would be required in the present appeal, as the Veteran filed an October 1979 claim of entitlement to service connection for a left foot injury and filed a September 2006 claim of entitlement to service connection for a "left great toe bone." The Board finds that such is not required, as the Veteran's October 1979 claim was granted, as noted above, by the January 1980 rating decision that awarded him service connection for slight deformity, left great toenail, and there is thus no prior denial that the Veteran seeks to reopen. The Board has also considered the scope of the Veteran's September 2006 claim of entitlement to service connection for "left great toe bone" and whether such serves as a claim to reopen any prior denial of service connection for an additional skin disability of the left foot, or a disability manifested by twitching of the left foot. The Veteran indeed filed an October 2013 claim during the pendency of this appeal for service connection for a skin disorder, and such was denied on the basis that new and material evidence had not been received in a May 2014 rating decision, as noted above. However, the Veteran's statements describing his claimed in-service left toe injury are silent for any complaint or assertion related to a skin disability or disability manifested by twitching of the left foot and the Board finds that his September 2006 claim is indeed a new claim for a separate disability, specifically, residuals, left great toe injury. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2015). REMAND The most recent VA treatment records are dated in May 2014. The Veteran has not submitted authorization for VA to obtain any private treatment records during the current appellate period regarding this claim. However, it appears that he submitted two August 2012 Disability Benefits Questionnaires (DBQs) from private providers. On remand, the AOJ should obtain and associate with the claims file the Veteran's updated VA treatment records and offer him a final opportunity to supplement the record with any relevant private treatment records. As noted above, the Veteran filed an October 1979 claim of entitlement to service connection for a left foot injury that occurred in 1966. He presented on VA examination in January 1980 and reported a left foot injury and complained of a broken left great toenail. He was diagnosed with slight deformity, left great toe, old injury, removal. Service connection for slight deformity, left great toenail, was granted by a January 1980 rating decision. During his November 1981 Board hearing, in connection with his claim of entitlement to an increased rating for his service-connected slight deformity, left great toenail, the Veteran described two in-service right foot injuries. His representative reported that while the original rating decision indicated that the Veteran claimed service connection for a left foot injury, actually, his in-service foot injuries involved the right foot. The Veteran's service treatment records are silent for complaint, treatment, or diagnosis of a left foot injury or residuals, left great toe injury. His VA treatment records dated in August 1992 and May 2004 indicate that the Veteran complained of left toe pain and denied any trauma. During VA treatment in July 2004, the Veteran reported toe pain since 1958, in service, and reported that aircraft engines fell on both of his feet at different times; and during VA treatment in August 2004, the Veteran was diagnosed with, in pertinent part, as to the diagnoses impacting the left great toe or adjacent areas, hallux limitus with local capsulitis and degenerative joint disease, and metatarsalgia. The Veteran reported, in a September 2006 statement, that his left great toe bone cracked when a round bin rotorstyle was dropped on his toe, during service in 1967 or 1968, and the stem of the rotor weighed 750 pounds. In his January 2013 Substantive Appeal, the Veteran asserted that evidence of his in-service toe injury had already been submitted to VA and that we would submit the same therein; however, the attached evidence consisted of a service treatment record detailing treatment for a right foot injury. At the time of the Veteran's first August 2012 DBQ, he was diagnosed with asymptomatic hallux valgus with minimal degenerative changes pursuant to X-ray examination in March 2008. At the time of the other August 2012 DBQ, he was diagnosed with, in pertinent part, as to the diagnoses impacting the left great toe or adjacent areas, hammertoes of the left second and third toes, Morton's neuroma, metatarsalgia, and mild or moderate hallux valgus, as well as moderate "other" foot injuries. That examiner reported that the Veteran only had degenerative arthritis in the right foot. It appears to the Board that the Veteran may have confused his in-service foot injuries, as his representative asserted, during the November 1981 Board hearing, that the Veteran's in-service foot injuries were of the right foot and the Veteran reported in-service right foot injuries consistently since 1979 and denied trauma to the left great toe to VA treatment providers in August 1992 and May 2004. However, the Board cannot ignore the fact that nine months after separation from service, in October 1979, he filed a claim of entitlement to service connection for a left foot injury and was examined in January 1980 and found to have a slight deformity of the left great toe, old injury, removal. On remand, the AOJ should afford the Veteran a VA examination of the left foot, specifically, the left great toe and adjacent areas, and obtain a sufficient etiological opinion as to any disability found present or of record during the appellate period. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the Veteran's claims file his VA treatment records maintained by the VA Medical Center (VAMC) in Altoona, Pennsylvania, dated from May 2014 to the present. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any VA facility, the Veteran must be duly notified and provided an opportunity to submit such records. 2. Send the Veteran VA Forms 21- 4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, and request that he complete such in order to obtain any relevant private treatment records, specifically, any private treatment records from the treatment providers who submitted the August 2012 DBQs. Advise the Veteran that he may submit such records if he so chooses. Any and all responses, including negative responses, must be properly documented in the claims file. If a negative response is received from any facility, the Veteran must be duly notified and provided an opportunity to submit such records. 3. Then, afford the Veteran a VA examination of the left foot, specifically, the left great toe and adjacent areas. All indicated tests and studies should be completed. The examiner is asked to opine as to the following: (a) Does the Veteran have arthritis of the left great toe or adjacent areas? If so, the examiner is asked to include report of a contemporaneous X-ray examination and opine as to whether it is at least as likely as not (at least a 50 percent probability) that such arthritis was manifest to a compensable degree within one year of separation from service, or by January 1980. (b) Is it at least as likely as not that the Veteran's hallux limitus with local capsulitis, degenerative joint disease, if appropriate, hammertoes of the left second and third toes, Morton's neuroma, metatarsalgia, and hallux valgus, and any other disability of the left great toe or adjacent areas found present, had its onset during service or is otherwise related to his active service, including consideration of his presentation with a slight deformity, left great toe, old injury, removal, found on VA examination in January 1980 and his lay statements as to a 750 pound engine part falling on his left great toe and cracking a bone? The claims file, to include a copy of this remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on and discuss examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If any action remains adverse to the Veteran, provide the Veteran with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. 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 2015). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).