Citation Nr: 1802013 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-35 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. This case was previously before the board in October 2017. At that that time, the Board remanded the claim for further development of the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND This case requires remand for an additional medical opinion, pursuant to VA's duty to assist the Veteran by obtaining medical opinion necessary to decide his claim. 38 U.S.C. 5103A(d). The Veteran contends that his currently diagnosed left foot neuropathy is related to a left toe contusion he experienced in service. Service treatment records confirm the left toe contusion. The October 2012 VA examiner opined that chronicity of a left great toe condition is not established. He based his opinion on silence in VA treatment records regarding any such condition. The Board remanded the case to the RO in October 2017 for an addendum opinion to take into account private treatment records, updated VA treatment records, and several current left foot diagnoses. The remand order specified that "[f]or all opinions provided, the examiner must provide a rationale (i.e., why or why not)." The November 2017 examiner provided separate opinions for multiple left foot disabilities, as requested by the Board. These opinions are inadequate, however, because they are based solely on absence of treatment in the record during service and for several decades thereafter. The Court of Appeals for Veterans Claims has specified that a medical examination is inadequate if it relies only on lack of treatment and does not take into account a veteran's lay assertions of injury or symptomatology. The Veteran testified at the hearing that he has experienced symptoms of left foot neuropathy continuously since service. An adequate opinion must take into account this statement. The examiner may also consider whether any intercurrent cause has resulted in the Veteran's symptoms, other than the in-service left great toe contusion. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records that are not currently in the claims file. After contacting the Veteran and/or his representative to obtain the appropriate authorizations and inquire about any outstanding relevant medical records not currently in the file, request treatment records from any sources the Veteran identifies. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After any additional records have been included in the claims file, obtain an addendum opinion from the November 2017 VA examiner, or, if unavailable, another suitably qualified examiner. A new VA examination is not necessary unless the VA examiner finds one is needed. The examiner should review the entire claims file, including the hearing transcript. All indicated studies, tests, x-rays, and evaluations deemed necessary should be performed. For each current left foot diagnosis-to include neuropathy, peripheral vascular disease, heel spur, degenerative osteoarthritis, onychomycosis, and any other left foot disability demonstrated in the medical record-the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability is related to service; whether it was chronic in service; whether it manifested to a compensable degree within the presumptive period of one year following service; or whether there is continuity of symptomatology from the Veteran's in-service injury. If relevant, the examiner may opine on any intercurrent cause of the Veteran's symptoms since service. For all opinions provided, the examiner must provide a rationale (i.e., why or why not). This rationale must explicitly comment on the Veteran's testimony at the hearing that he has experienced left foot neuropathy symptoms continuously since service. 3. After ensuring that the requested actions are completed, VA should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).