Citation Nr: 1754054 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 13-23 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial higher (compensable) rating for a fungal condition of the bilateral toenails. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from April 1953 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection and a noncompensable rating for a fungal condition of the bilateral toenails, effective March 5, 2007. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA skin diseases examination in August 2012. The diagnosis was onychomycosis. The Veteran was also afforded a VA scars and disfigurement examination in August 2012. The examiner did not provide a diagnosis and indicated that the Veteran did not have one or more scars anywhere on his body, or disfigurement of the head, face, or neck. Since that time, in an August 2013 VA Form 9, the Veteran reported that he had pain and scarring associated with his service-connected fungal condition of the bilateral toenails which would warrant a higher rating. Additionally, in his August 2013 VA Form 9, the Veteran also reported that recent progress notes from the Daytona Beach, Florida VA Outpatient Clinic would support his claim. The Board observes that the most recent treatment reports of record from such facility are dated in May 2013. The Board notes that as there are possible further VA treatment records that may be pertinent to the Veteran's claim, they should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance). The Board observes that the Veteran has not been afforded a VA examination, as to his service-connected fungal infection of the bilateral toenails, in over 5 years. In light of the state of the record, as well as the Veteran's statements as to pain and scarring associated with his service-connected fungal condition of the bilateral toenails which raise a question as to the current severity of his disability, the Board finds that his claim must be remanded to afford the Veteran a contemporaneous VA examination. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history); See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995) Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the Veteran's VA medical records, which are not already in the claims folder, concerning his treatment at the Daytona Beach, Florida VA Outpatient Clinic, for his claimed fungal infection of the bilateral toenails, since May 2013. 2. Ask the Veteran to identify all medical providers who have treated him for his bilateral toenail disabilities since May 2013. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the nature, extent, and severity of his service-connected fungal condition of the bilateral toenails, and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Thereafter, schedule the Veteran an appropriate VA examination to determine the extent and severity of his service-connected fungal infection of the bilateral toenails. The entire claim files, including all electronic files, must be reviewed by the examiner. All indicated tests should be conducted and all symptoms associated with the Veteran's service-connected fungal condition of the bilateral toenails must be described in detail. The examination report must include a complete rationale for all opinions expressed. 5. Finally, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran 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 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). _________________________________________________ STEVEN D. REISS 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) (2017).