Citation Nr: 20008002 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-23 974 DATE: January 30, 2020 REMANDED Entitlement to an increased evaluation for status post infection with septicemia, right first metatarsal joint with degenerative arthritis, metatarsalgia of the right foot, hallux rigidus of the right foot, and scar of the right foot is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from August 1961 to August 1965, including service during the Vietnam Era. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for status post infection with septicemia, right first metatarsal joint with degenerative arthritis, and assigned a 10 percent rating from August 25, 2010, a 100 percent rating from December 1, 2010, and a noncompensable rating from February 2011. Various rating decisions have granted increases for various periods and service-connected additional right lower extremity conditions as associated with the service-connected condition during the pendency of this appeal and the issue, as characterized, reflects these changes. However, because these increases do not represent a total grant of the benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Regrettably, the claim must be remanded to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2018). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). 1. Entitlement to an increased evaluation for status post infection with septicemia, right first metatarsal joint with degenerative arthritis, metatarsalgia of the right foot, hallux rigidus of the right foot, and scar of the right foot is remanded. In May 2018, the Board remanded the claim to the RO because records were missing from the claims file. Specifically, the Board noted that the RO’s June 2014 rating decision referenced a series of outpatient treatment records from the Fresno VA medical center (VAMC) from December 2010 to April 2014 and relied in part on those records as the basis for rating the Veteran’s disability. The Board’s remand directives instructed the RO to associate with the claims file these outstanding relevant VA treatment records. While the RO did obtain updated records from the Palo Alto VAMC, it appears that the Fresno VAMC records still have not been associated with the claims file and therefore remain outstanding relevant VA medical records. See 38 U.S.C. § 5103A(c)(1)(B) (2012). As the Board previously noted, these VA records are considered part of the record on appeal since they are within VA’s constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Because the records are potentially probative, are deemed to be constructively of record, and because they are not currently available, they must still be obtained in order to comply with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Next, the Board notes that the VA’s duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. See Peters v. Brown, 6 Vet. App. 540, 542 (1994); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Generally, reexaminations will be required if it is likely that a disability has changed in severity. In this case, due to the length of time since the Veteran’s last VA examination, more than 3 years in this case, the Board finds that a new examination regarding the Veteran’s claimed condition is appropriate. As such, the Board must find that further development is required before the appeal can be decided. The matters are REMANDED for the following action: 1. Obtain the Veteran’s medical records from the Fresno, California VAMC, and associate these records with the claims file. Ensure that all available records from the Fresno VAMC are obtained, specifically including the records dated from December 2010 to April 2014, as cited in the June 2014 Rating Decision. 2. Clarify the Veteran’s representation. The Board notes that while a state Veterans Service Organization (VSO) appears to be appointed for the Veteran, the VSO does not appear to have actively assisted the Veteran with his claim(s) in recent years. 3. Contact the Veteran and verify all treatment providers during the pertinent period on appeal. Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file. Document efforts to obtain such records and undertake any further development actions necessary to adjudicate this matter after review of any newly obtained records. 4. Inquire with the Veteran whether he is willing to undergo an updated medical examination regarding this claim and, if willing, schedule the Veteran for an examination with an appropriate clinician to address the current severity of the Veteran’s service-connected foot and toe disabilities as characterized above. The Veteran’s claims file, including all previous VA examinations, and a copy of this remand must be provided to the medical examiner for review. The examiner must take a history from the Veteran regarding observable symptomatology. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner should provide opinions for the following: (a.) Describe any current symptomatology associated with the Veteran’s service-connected right first metatarsal joint with degenerative arthritis, metatarsalgia of the right foot, hallux rigidus of the right foot, and scar of the right foot. (b.) The VA examiner should describe and render specific findings as to whether there is objective evidence of painful motion, weakness, excess fatigability, or incoordination associated with the right foot and toes. In addition, the VA examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his right foot and toes due to pain or any of the other symptoms during flare-ups or with repeated use due to his service-connected conditions. (c.) The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right foot and toes after repeated use over time. (d.) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional functional loss during a flare-up or after repeated use over time. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case, and identify what additional evidence or information (if any) would allow for a more definitive opinion. Have the examining clinician provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran’s claims file. 5. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary additional development, and readjudicate the claims on appeal. If the appeal remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.