Citation Nr: 18139831 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-00 782 DATE: October 1, 2018 REMANDED The issue of entitlement to service connection for bilateral hammertoes is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served in the United States Army Reserve, with active duty service from August to December 1997, a verified period of active duty for training in August 1998, and active duty from February 2003 to August 2003, including service in the Persian Gulf Theater. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated June 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. June 2011 Rating Decision A June 2011 rating decision denied service connection for bilateral hammertoes. The Veteran submitted a timely Notice of Disagreement in July 2011, the RO issued a Statement of the Case in March 2012, the Veteran perfected an appeal in April 2012, and on September 27, 2012, the RO issued a Supplemental Statement of the Case (SSOC). The SSOC invited the Veteran to submit additional evidence within 30 days from the date of the SSOC. In November 2012, the Veteran submitted a statement “withdrawing” his appeal, enclosed a November 2012 private medical opinion, and requested that the RO consider the new evidence in adjudicating his claim for service connection. See Statement in Support of Claim dated November 13, 2012 and associated medical opinion of B.J.B. dated November 6, 2012. The RO construed the Veteran’s statement as a petition to reopen a prior final claim, which it denied in a March 2013 rating decision, finding that the private medical opinion was not new and material. See Rating Decision dated March 28, 2013. On review however, the Board finds the Veteran’s November 2012 statement ambiguous. Although it requested withdrawal, it was also accompanied by additional pertinent medical evidence. Under the circumstances of this case, where the Veteran’s appeal had not been certified to the Board, the Board is not convinced that the Veteran’s intent was to withdraw the appeal as the Veteran simultaneously submitted evidence in support of his claim. Rather, it appears that subsequent to the September 2012 SSOC, the Veteran continued to prosecute his claim and that his November 2012 statement and evidence (albeit received 30+ days after the issuance of the SSOC) were intended only to delay certification of the appeal to the Board, while new evidence was considered by the RO. Resolving any reasonable doubt in the Veteran’s favor, the June 2011 rating decision had not become final and the Veteran’s need to reopen the claim is not necessary. At any rate, prior to analyzing the merits of the claim, additional evidentiary development and readjudication by the RO is needed. Service Treatment Record The Veteran’s claims file includes a single service treatment record (STR) dated May 28, 2003, indicating an in-service examination of the Veteran’s feet and assessment of chronic right foot pain caused by improperly healed toe fractures. See The record captioned “Medical Record” and “Chronilogical [sic] Record of Medical Care” with the date noted as “5/28/03.” This record was submitted by the Veteran with the July 2011 Notice of Disagreement. See Letter from Disabled American Veterans dated July 5, 2011 (“Attachment(s): Claimant Statement; Medical Document (Field Hospital Report)”). The presence of this record in the claims file contrasts with a November 2008 VA formal finding, which determined that the Veteran’s STRs for the period from February 7, 2003 to August 15, 2003 are unavailable after requests for records from the National Personnel Records Center and the VA Records Management Center were answered with negative replies. See VA Memorandum of formal finding dated November 26, 2008. Further, a November 2015 e-mail from the VA Records Control Center reflects that additional searches for the Veteran’s STRs were not productive. The misspelling of the word “chronological” in two places in what is represented to be a Chronological Record of Medical Care, a standard form used by military services to record information reflecting medical symptoms and treatment during service, and the November 2008 VA Memorandum and November 2015 VA Records Control Center e-mail raise questions as to the authenticity of the STR. While the Board makes no judgment here as to the legitimacy of the document identified as an STR, the law and regulation clearly charge VA and its employees with the responsibility to protect the integrity of the VA compensation and adjudication system. As such, the Board finds that it is necessary to determine the authenticity of the record represented to be an STR. Additional development would be in order conditional on the outcome of the determination of whether the STR of record is authentic. VA Examination Assuming that the aforementioned May 2003 STR is authentic, the September 2014 VA foot conditions examination is inadequate. In opining that the Veteran’s bilateral hammertoes disability is not related to service, the examiner failed to discuss the May 2003 STR in the rationale that supports the medical opinion. The entire focus of the record dated May 2003 and represented as an STR is the Veteran’s right foot pain and incorrectly healed toe fractures, and therefore is, on its face, relevant to the Veteran’s claim. However, the supporting rationale for the September 2014 VA opinion ignored the May 2003 STR, which is described at the very end of the opinion akin to a footnote. See VA examination report dated September 18, 2014 at pg. 11. Additionally, the VA examiner indicated that the Veteran reported no foot problems prior to service. However, the record reflects that the Veteran previously asserted that his foot disabilities preexisted service. See Letter from Veteran dated April 8, 2014. The United States Court of Veterans Appeals has held that a VA examiner’s conclusions are of “questionable probative value” when the examiner fails to consider certain relevant information. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Moreover, VA must ensure that a VA examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the September 2014 VA examiner failed to consider relevant information: The May 2003 STR and the Veteran’s April 2014 letter. Therefore, on remand, if, and only if, the aforementioned record represented by the Veteran to be an STR is determined to be authentic, the RO will schedule a new VA examination. The matter is REMANDED for the following action: 1. Contact the Veteran and ask him to identify the source of the record submitted by the Veteran and represented to be an STR dated May 28, 2003. See in VBMS: Receipt Date 07/05/2011, Document Type “STR – Medical – Photocopy. See also in VBMS: Receipt Date 07/05/2011, Document Type “Third Party Correspondence.” If the Veteran identifies an official source for the record, contact that source to obtain copies of the Veteran’s records. Even if the Veteran does not respond to the above request, the RO should contact the appropriate agency(s) to request copies of the record submitted by the Veteran. 2. If the Veteran cannot identify the source of the submitted record, or, if it is shown, based on a response from an official source, that there are no additional records for the Veteran, the RO should take the necessary steps to have the record submitted by the Veteran authenticated. This may include submitting copies of the record to the appropriate agency(s) for their consideration as to the authenticity of the records. All efforts to obtain these records must be documented in the Veteran’s claims folder. An official determination must be made in writing and included in the claims folder as to the authenticity of the record. If for any reason, there is a determination that the record is not authentic, the RO should consider addressing the Veteran’s claim as being based on fraud as per 38 U.S.C. § 6103(a) and 38 C.F.R. §§ 3.900, 3.901. Should there be a determination that fraud is involved, no further development of the service connection aspect of the claim is necessary 3. If, and only if, the RO determines that the record represented as an STR is authentic, ensure that all outstanding VA treatment records are associated with the claims file. 4. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s foot disabilities. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Indicate all disabilities of the feet, unilateral and/or bilateral, diagnosed since April 11, 2014, the date of the claim. (b) Whether each of the identified foot disabilities clearly and unmistakably preexisted service, and, if so; (c) Whether each such preexisting disability clearly and unmistakably was NOT aggravated by service. (d) For any foot disability that did not preexist service, provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the disability is a result of his military service. The VA examiner must provide a detailed rationale for all opinions rendered. Although the entire claims file should be reviewed, the examiner’s attention is directed to the November 6, 2012 medical opinion provided by the Veteran’s VA primary care physician at Cincinnati VAMC (See in VBMS: 11/19/2012 “Third Party Correspondence”). (Continued on the next page)   5. Thereafter, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel