Citation Nr: 1806064 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-05 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a left foot disability, to include hammer toes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from July 2004 to June 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. While the December 2013 statement of the case listed the issue on appeal as entitlement to service connection for both left and right foot hammer toes, the Veteran's initial claim requested only service connection for a "hammer toe." Moreover, the Veteran stated at the March 2017 Board hearing that his claim was only intended to encompass a claim of entitlement to service connection for a left foot disability, and not a right foot disability. The Veteran also stated that he has been given different diagnoses for his foot problems, including corns and bursa. The Board therefore recharacterized the issue on appeal to better reflect the Veteran's contentions regarding his claimed disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At a March 2017 Board hearing, the Veteran stated that he began having foot problems while he was still in the service. He testified that he was found to have a growth between his toes on his left foot in 2006, although he believes it was misdiagnosed at the time as a wart or corn. He stated that his foot pain later came back, and that after service he was found to have not just a skin disorder of the feet but also hammer toes. The Veteran's service treatment records show that he was treated for verruca plantaris/plantar warts on the left foot in May 2005. The service medical records do not reveal a diagnosis of a hammer toe. The Veteran has submitted a Disability Benefits Questionnaire which states that he has a diagnosis of left foot hammer toe, and that the appellant related it to problems which started in 2005. The Veteran's more recent private and VA treatment records show that he has been treated for pain and numbness in his left fifth toe, diagnosed as hammer toe, exostosis, heloma molle, and bone spur. In July 2010, the Veteran underwent a fifth toe partial syndactyl with arthroplasty surgery in order to remove excess bone in the left foot. The Veteran has reported that he has had continuing foot pain and problems ever since his treatment for plantar warts in service, and his records show that he does have several different current left foot diagnoses. The Veteran has not, however, been afforded a VA examination to evaluate the etiology of his current left foot and toe disorders. The Board therefore remands this issue so that an adequate VA examination can be held prior to adjudication. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with another opportunity to submit a completed release form (VA Form 21-4142) authorizing VA to request any additional, relevant private treatment records. The Veteran should be advised that he can also submit those records himself. If the Veteran provides a completed release form, then request the identified treatment records. All attempts to secure those records must be documented in the Veteran's claims file. If the AOJ cannot locate records identified by the appellant, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Request all relevant VA treatment records from the Atlanta VA Health Care System, including its affiliated facility, the Oakwood VA Clinic, and the Central Alabama Veterans Health Care System, including its affiliated facility, the Columbus Clinic. All records obtained should be associated with the claims file. If the AOJ cannot locate these Federal records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Thereafter, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed left foot or toe disorder. The examiner is to be provided access to all files in VBMS and Virtual VA. The examiner must specify in the report that these records have been reviewed. The examiner must then address: a) What are the Veteran's current diagnoses pertaining to the left foot and toes? b) For each and every diagnosis found, is it at least as likely as not (a 50 percent probability or greater) that the disorder began during the Veteran's active duty service or is otherwise related to service to include inservice treatment in service in May 2005 for plantar warts? Please address the Veteran's contentions that he believes he was misdiagnosed with plantar warts in service and that he has had continuing left foot pain from 2005 until the present. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 4. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this remand. Then readjudicate the claim, considering all evidence of record. If the benefit sought remains denied, the Veteran must be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN 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).