Citation Nr: 1604293 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 13-21 720A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable evaluation for right great toe osteoarthritis. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to August 2010. His awards and decorations include the Combat Action Badge during the Persian Gulf War. This case comes before the Board of Veterans Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the course of the appeal, the claims file was transferred to the RO in Nashville, Tennessee. In November 2015, the Veteran testified at a Travel Board hearing at the RO in Nashville, Tennessee before the undersigned Veterans Law Judge. Additional VA outpatient treatment records dated from April 2014 to July 2014 were associated with the record in January 2016, after the case was certified to the Board in June 2014. Since these records are not relevant to the claim on appeal, a waiver of initial Agency of Original Jurisdiction (AOJ) review is not needed and the Board may proceed with the claim. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims files. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND A remand is needed to obtain an additional VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). During the course of the appeal, the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination for foot miscellaneous (other than flatfoot/pes planus) in May 2013. The request for this examination specifically noted the Veteran is service connected for right great toe osteoarthritis and is claiming an increased evaluation. The VA examiner marked "yes" for reviewing the Veteran's claims file; noted the Veteran's report of pain and difficulty standing for prolonged periods and pushing off with his feet; and diagnostic test results of the right foot included borderline pes planus and advanced degenerative joint disease in the first MTP joint. The examiner also marked "no" for any findings of Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus (acquired claw foot), malunion or nonunion of tarsal or metatarsal bones, any other foot injuries, and bilateral weak foot. In contrast to these VA examination findings, January 2012 private treatment records by Dr. Starkweather revealed the Veteran's right great toe has obvious deformity on inspection, palpation, and radiographs, Veteran reports nighttime numbness and tingling, and physical evaluation revealed tenderness on palpation and range of motion is essentially absent. Dr. Starkweather also noted the Veteran has no motion of the MP or IP joint of the right great toe and this is clearly disabling and impaired in function. Review of the record shows that these private treatment records were of record at the time of the May 2013 VA DBQ examination, but such pertinent findings were not considered or noted by the VA examiner. Moreover, when a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95; 60 Fed. Reg. 43186 (1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). At the November 2015 Board hearing, the Veteran agreed to experiencing instability, described as freezing up on his toe and has to catch himself, and aching when on uneven terrain, pushing off, and when up on his toes. He also testified that he is not currently being seen by a doctor for this service-connected disability on appeal. Accordingly, the case is REMANDED for the following actions: 1. The Veteran must be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right great toe osteoarthritis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected right great toe disability. It should be noted that the Veteran is competent to attest to observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must report all signs and symptoms necessary for rating the Veteran's right great toe disability under the relevant rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. In particular, the examiner should (1) determine whether there is any actual loss of use of the right foot; (2) determine whether there is pes planus on the right foot due to the service-connected right great toe osteoarthritis, and if so to what degree; (3) comment upon the presence, if any, of acquired claw foot, malunion or nonunion of tarsal or metatarsal bones, toes tending to dorsiflexion, and any other right foot injuries; and (4) assess the extent of functional impairment attributable to any reported pain of the right foot. 2. Notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequence in connection with a claim for increase for failure to report for a VA examination without good cause is denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be reviewed on the basis of additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. (CONTINUED ON NEXT PAGE) The Veteran 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). _________________________________________________ CHERYL L. MASON 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).