Citation Nr: 1628129 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 11-07 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a left great toe disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Zi-Heng Zhu, Associate Counsel INTRODUCTION The Veteran had active service from August 1983 to June 1985. This case comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. REMAND The Board finds that additional development is required for the claims for service connection for a back, knee, and left great toe disabilities. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. During testimony at the March 2015 Board hearing, the Veteran contended that he has a back disability since a back injury during service. Specifically, he asserted that he had been intermittently receiving treatment since service for a back disability and bilateral knee disabilities from a private physician or chiropractor named "Shan." However, a review of the entire claims file shows no private treatment records for the back until a diagnosis in 2010. The June 2015 Board remand requests did not request development regarding obtaining any further private medical records. Since the Board's remand, no attempts to obtain authorization for those private medical records are noted. Accordingly, the Board finds that the claim for service connection for a back disability must be remanded for attempts to obtain private medical records for the VA to fulfil its duty to the Veteran. The Board finds that the July 2015 VA examination was incomplete. Specifically, the VA examiner did not consider the Veteran's lay statements regarding an ongoing left great toe condition since service. Specifically, the Veteran has contended that he has had a left great toe condition, to include ingrown toenails and fungal issues since active service. The Veteran claims that the boots that he was required to wear during service caused the foot condition in service, to include athlete's foot, which has continued until the present. The Veteran, during the March 2015 Board hearing explicitly noted that he has continuously had ingrown toenails since service and such claim of a continued condition was corroborated by the spouse at the hearing. The examiner did not consider the Veteran's lay assertions regarding etiology and continuity of symptoms since service. The Board finds that an ingrown toenail is a condition a lay person may competently assess and speak to, as it is an observable manifestation. While the examiner comprehensively spoke to the Veteran's service injuries, the examiner did not address the lay statements of record or provide a rationale as to how those statements weigh for or against establishing a nexus for the Veteran's claim for service connection. Accordingly, a new opinion is needed on remand. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2015). When the medical evidence is incomplete, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private treating physicians or specialists that are not already of record. Specifically, attempt to obtain private medical records for the Veteran's back and knees from a treatment provider named "Shan" as noted by the Veteran during the March 2015 Board hearing. For private treatment records, make at least two attempts to obtain records from any identified sources. If any records are unavailable, inform the Veteran and allow him an opportunity to submit any copies in his possession. 3. Then, schedule the Veteran for a VA examination of the low back. The examiner must review the claims file and should note that review in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any back disability is related to active service or any incident of service. The examiner must consider the lay statements of record that the Veteran has stated he incurred a back injury in service and has continued to have back symptoms since service. The rationale for any opinion should be provided. 4. Schedule the Veteran for a VA examination of the knees. The examiner must review the claims file and should note that review in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any bilateral knee disability is related to active service or any incident of service. The examiner must consider the lay statements of record that the Veteran has stated he incurred a knee injury in service and has continued to have knee symptoms since service. The rationale for any opinion should be provided. 5. Schedule the Veteran for a VA examination of the left great toe. The examiner must review the claims file and should note that review in the report. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that any left great toe disability, to include ingrown toenails and onychomycosis, is related to active service or any incident of service. The examiner must consider the lay statements and testimony regarding the Veteran's claim that a left great toe condition, to include ingrown toenails or onychomycosis, started during service as a result of his boots, and has been recurrent since separation from service. The rationale for any opinion should be provided. 6. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ Harvey P. Roberts 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).