Citation Nr: 1802465 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-16 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral hallux valgus (claimed as bunions). 2. Entitlement to service connection for bilateral onychomycosis of the toes (claimed as fungus of the toenails). REPRESENTATION Appellant represented by: Timothy R. Franklin, Attorney ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. This case has a rather complicated procedural history. The issues came before the Board in October 2013. At that time, the Board reopened the issue of entitlement to service connection for a left foot condition, and subsumed that issue into the issues remaining on appeal, in addition to the issue of entitlement to service connection for bilateral foot neuropathy. The three issues pertaining to service connection of foot disabilities were then remanded for further development. In December 2014, the issues of entitlement to service connection for foot neuropathy and toenail fungus were again remanded for further development, and the issue of entitlement to service connection for bilateral hallux valgus was denied by the Board. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), and in October 2015, the Court granted a September 2015 Joint Motion for Partial Remand (JMR) which remanded the issue of service connection for bilateral hallux valgus back to the Board for development consistent with the JMR. In February 2016, the issues were again returned to the Board, at which time the Board denied all three claims. The Veteran again appealed the denials to the Court which issued a Memorandum Decision in February 2017. That decision found no clear error with the Board's treatment of the claim of service connection for a neuropathy of the feet, and as such, upheld the Board's decision regarding that claim. However, the Court did find issue with the Board's decision regarding the two claims remaining on appeal, reversing the Board's decision as to those issues, and remanding them for further development consistent with the holding in the Memorandum Decision. As such, those issues have returned to the Board at this time. Also in the February 2016 decision, the Board remanded the issues of entitlement to service connection for atopic dermatitis and prurigo nodularis, and service connection for posttraumatic stress disorder (PTSD) for issuance of a statement of the case under the holding in Manlincon v. West, 12 Vet. App. 238 (1999). The required statement of the case was issued in September 2016, and on September 28, 2016, the Veteran submitted a VA Form 9 (Appeal to the Board of Veterans' Appeals) perfecting the appeal to the Board of those issues. While a VA Form 9 ordinarily confers jurisdiction over an appeal upon the Board, the Veteran requested that a hearing be scheduled with regard to those claims. As a hearing has yet to be conducted, those issues are not yet ripe for appeal and have not been included with the above claims at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As discussed above, the Court has remanded the claims remaining on appeal for compliance with the orders in its February 2017 Memorandum Decision. Once VA undertakes to provide an examination in connection with a service connection claim, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Concerning the claim of service connection for onychomycosis of the feet, the Court found issue with the Board's decision on two fronts. First, the Court determined that the Board failed to afford the Veteran's lay testimony as to warts under his left toenail in 1984 adequate weight. Particularly, the Court determined that the 1984 statement should be interpreted to include a "fungus of the toes." Further, the Court determined that the December 2013 VA examination and April 2015 addendum opinion were less than adequate because they were provided by an examiner who did not possess specific training or experience related to podiatry conditions. Upon review, the Board agrees with the Court and finds further issue with the VA examination and addendum opinion. In addition to not being rendered by a person with podiatric expertise, the Board observes that the opinions rendered did not fully address the Veteran's competent lay testimony regarding a skin condition in service, and did not address the 1984 report of warts under the toenail. This is concerning as the Veteran's Military Occupational Specialty was as a "medical specialist" and therefore, his testimony as to skin issues during and after service carries more probative weight than the average lay person's testimony. Further, the Board now determines that the examiner also relied upon an incorrect interpretation of his separation examination when stating that the Veteran denied a skin condition. Indeed, while the Veteran did not specify a skin issue with his feet, he did identify foot trouble at the time of separation. Therefore, any opinion rendered on the Veteran denying issues with his feet at separation is based on an incorrect interpretation of the facts. In light of this, the Board will comply with the Court and request a new VA examination in connection with that claim. Regarding the claim of service connection for hallux valgus, the Court found that the Board failed to provide adequate reasons and bases for its decision denying the claim. Particularly, the Court determined that the Board's statement that the Veteran likely would have sought treatment for any other pain, discomfort, or deformity of the foot, including bunions, had they occurred during service, was an incorrect interpretation of the evidence of record. Here, the Court concluded that the Veteran never actually stated that he experienced pain in service from hallux valgus, and therefore it was unclear why he would have sought treatment for an asymptomatic condition. Further, the Court found that the Board failed to explain why the failure of an examiner to note bunions during an examination in service (in this case an unrelated condition to those which were being treated) was negative evidence, as opposed to no evidence. Here, the Board notes that the Veteran has, in fact, argued that his bunions caused pain from service to the present day. In a January 2008 statement he argued that his bunion swelling required constant soaking and wearing of orthopaedic shoes for two weeks with no running, resulting in pain from service to the present. However, even considering this statement, which the Board relied upon in its prior decision to determine that he did not experience bunions in service; upon review, the Board finds that the Veteran's service treatment records may, in fact, document a relevant in-service foot condition. As such, the prior VA examinations are inadequate. Here, the Board refers back to the September 2015 JMR, which found issue with the Board's prior determination that the Veteran's reports of bunions in service were less than credible. Here, the Board observes that, while never actually treated for bunions, per his service treatment records, in March 1981 he was treated for a stubbed left toe with a swollen metatarsophalangeal joint. The metatarsophalangeal joint is the joint which is affected by hallux valgus. Further, the Board again observes that the Veteran's military occupational specialty was as a medical specialist and observable symptomatology, such as an angulation of the great toe away from the foot, may constitute competent lay evidence. Barr, 21 Vet. App. at 307-08. The 2015 JMR specifically instructed the Board to determine whether the Veteran had an in-service incurrence of bunions. Given the holding in Barr, the Veteran's lay testimony, and his service treatment records documenting an issue with the metatarsophalangeal joint, the Board would request that the Veteran be afforded a new VA examination with an examiner with expertise in podiatric medicine, to address any possible onset or causation of bunions during active service. Accordingly, the case is REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Schedule the Veteran for a new VA examination with a podiatrist or other medical examiner with expertise in foot care. The complete claims file should be provided to the examiner selected to conduct the examination. The examiner should conduct a thorough examination of the feet, to include taking a detailed medical history from the Veteran. Here, the examiner is informed that the Veteran is competent to provide testimony as to observable symptomatology, and other diagnoses capable of being rendered by a military medical specialist. Thereafter, the examiner should answer the following questions: o Is it at least as likely as not that the Veteran's onychomycosis had onset during active service, or is otherwise related to any incident of active service, to include wearing of heavy and/or wet boots? In reaching this conclusion, the examiner must discuss the Veteran's reports of fungus under his toenail during service, as well as the April 1984 claim which referred to warts under the nail (the examiner should note that the Court has determined that the report of "warts" in 1984 may also include a fungus). o Is it at least as likely as not that the Veteran's hallux valgus had onset during active service, or is otherwise related to any incident of active service, to include the wearing of heavy boots and/or running? In reaching this conclusion, the examiner should address the Veterans' reports of observing bunions in service, reports of pain and swelling since service, as well as his 1981 swollen metatarsophalangeal joint. In reaching the above conclusions, the examiner should provide an adequate discussion of the reasons and bases used. Citation to evidence in the record, known medical principles, and/or medical treatise evidence would be of assistance to the Board in addressing the claims. Again, the examiner is reminded that the Veteran has some level of medical expertise, and therefore is competent to report his observed symptoms during active service. 3. Thereafter, readjudicate the claims in light of all evidence of record. If either benefit should remain denied, issue the Veteran and his representative a supplemental statement of the case and afford adequate time to respond before returning the matter to the Board for further 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ ERIC S. LEBOFF 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).