Citation Nr: 21008729 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-35 392 DATE: February 17, 2021 REMANDED Entitlement to service connection for a fifth right toe and/or toenail disability, to include arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1967 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in November 2013, July 2018, and December 2019. The case has since been returned to the Board for appellate review. Although the Board regrets the additional delay, further development is required before a decision may be made on the merits of the issue on appeal. The Veteran contends that he has had pain in his fifth right toe, from the toenail down to approximately one and a half inches below the toenail, at first intermittently since active duty service and more recently it has become painful every day. The Veteran asserts that this pain is the result of an in-service treatment he had for a toenail infection of his fifth right toe. Although, service treatment records indicate the Veteran was treated for the infection solely by antibiotics, the Veteran contends that part or all of his toenail was removed by the Army podiatrist as part of the treatment. He asserts that the toenail has never grown back normally and causes him pain. See Statement in Support of Claim, received by VA in January 2020. In the same above-referenced Statement in Support of Claim, the Veteran mentioned that he went to see his primary care doctor in November 2019 to determine the cause of his swelling on the outside of his right foot on the side with his fifth right toenail. The doctor took an x-ray of his right foot, but could not determine the cause of the swelling. The Veteran was prescribed Diclofenac Sodium DR 50mg to treat the swelling. The medical evidence of record shows that the Veteran sought treatment from his primary care doctor on November 22, 2019. Upon physical examination, pain on palpitation of the right foot at the fifth metatarsophalangeal (MTP) joint. X-ray results showed no evidence of fracture or dislocation but did note a small osteophyte at the distal fifth MTP joint with mild soft tissue swelling. See Medical Treatment Record – Non-Governmental Facility, received by VA in January 2020. Although the swelling was not diagnosed as arthritis at this appointment, the Veteran’s representative now asserts that the soft tissue swelling noted in the November 22, 2019 x-ray is indicative of arthritis. See Appellate Brief, received by VA in February 2020. When this issue was last before the Board in December 2019, it was remanded to afford the Veteran a new VA examination to determine the nature and etiology of the Veteran’s fifth right toe and/or toenail disability. The remand directed the examiner to identify any and all fifth right toe and/or toenail disability affecting the Veteran during the period on appeal. It advised the examiner that for VA purposes, pain is considered a disability if it is productive of functional impairment of earning capacity and instructed the examiner to opine as to whether the Veteran’s reported fifth right toe and/or toenail disability is productive of functional impairment of earning capacity. The remand further instructed that for each fifth right toe and/or toenail disability identified, the examiner should address whether it clearly and unmistakably preexisted the Veteran’s military service. If any fifth right toe and/or toenail disability was found to have clearly and unmistakably preexisted the Veteran’s military service, the remand directed the examiner to opine as to whether there was clear and unmistakable evidence that any such disorder was not aggravated during or by the Veteran’s military service beyond that which would be due to the natural progression of the disability. The examiner was specifically asked to address the report of a right small toe fracture in 1966, as reported in the past medical history section of the August 1967 enlistment examination. The examiner was also asked to specifically address the normal findings of the Veteran’s feet in the August 1967 enlistment physical examination. Finally, the remand directed that for any fifth right toe and/or toenail disability (to include subjective pain if productive of functional impairment of earning capacity) that did not preexist military service, the examiner should opine whether it was at least as likely as not that said disability originated during or was otherwise etiologically related to the Veteran’s military service. Pursuant to the December 2019 Board remand, the Veteran was afforded a VA skin diseases examination in January 2020. The VA examiner noted that the Veteran had a current skin condition, paronychia, and that the Veteran had first been diagnosed with the condition in 1967. The examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had was treated for paronychia during service, but that it had resolved after its initial treatment with antibiotics. He noted that the medical evidence of record was silent for concurrent treatment, diagnosis, diagnostics, and continued medical care in relationship to the claimed toenail condition. The January 2020 VA examiner also noted that the Veteran had a documented fracture to the right fifth toe prior to enlisting for military service. The examiner stated that he had reviewed the November 22, 2019 x-ray of the Veteran’s right foot and noted the results of the x-ray, but did not make any diagnoses based on the x-ray results. He found that medical evidence of record was silent for baseline of aggravation (enlistment service examination) at the time of the Veteran’s separation from service examination. He opined that the osteophyte shown in the aforementioned x-ray was more than likely related to the fracture to the right fifth toe the Veteran incurred prior to enlisting for military service. He then noted that there was no evidence of sustained or diagnostic treatment for a fracture, paronychia, or ingrown toenail within the Veteran’s military service record or otherwise. Although the January 2020 VA skin conditions examination and medical opinion adequately addressed the diagnosed paronychia condition, they did not adequately address the pain the Veteran has been experiencing in his fifth right toe and toenail. Because the claimed issue may be related to the MTP joint in the fifth right toe, the Veteran should be afforded a VA foot conditions examination to adequately address the issue. Thus, the Board finds that there has not been substantial compliance with the previous remand and further remand is necessary to obtain a VA foot conditions examination and an additional medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disability on appeal since January 2020 (the most recent date of private medical records pertaining to this disability contained in the claims file). After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA foot conditions examination to determine the nature and etiology of his fifth right toe/toenail disability. The entire claims file, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. All indicated tests should be performed, and all findings should be reported in detail. (a.) Please identify each fifth right toe/toenail disability affecting the Veteran during the period on appeal, to include arthritis. A date of onset for each disability, if possible, should be provided in the opinion. In this regard, the examiner should address whether the Veteran has a disability manifested by pain in his fifth right toe/toenail. The examiner should also specifically indicate whether the Veteran has or had functional impairment of earning capacity in the fifth right toe/toenail, in accordance with the holding of Saunders v. Wilkie, 885 F.3d 1356 (Fed. Cir. 2018). (b.) For each identified fifth right toe/toenail disability, the examiner should state an opinion as to whether the disability clearly an unmistakably preexisted the Veteran’s military service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misunderstood. The examiner should specifically address the report of a right small toe fracture in 1966, as reported in the past medical history section of the August 1967 enlistment examination. The examiner should also address the normal findings of the feet in the August 1967 enlistment physical examination. (c.) For each fifth right toe/toenail disability which the examiner determines preexisted the Veteran’s military service by clear and unmistakable evidence, the examiner must opine as to whether the condition clearly and unmistakably underwent no increase in severity (beyond its natural progression) during or as a result of service. (d.) If it is found that there is clear and unmistakable evidence that the Veteran’s condition existed prior to service and that there is clear and unmistakable evidence that the condition underwent no increase in severity (beyond its natural progression) during or as a result of service, the examiner should clearly indicate the clear and unmistakable evidence supporting his or her conclusion (e.) For each fifth right toe/toenail disability which the examiner determines (to include subjective pain if productive of functional impairment of earning capacity) did not preexist military service, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s fifth right toe/toenail disability is causally related to the Veteran’s military service, to include the reported removal of part or all of the Veteran’s toenail when he was being treated for a toenail infection in October 1967. In providing this opinion, the examiner should consider and address the Veteran’s lay statements concerning the onset of his symptomatology. The Veteran is competent to report symptoms capable of lay observation. The examiner is also asked to specifically consider and address the November 22, 2019 x-ray results and assessment for pain and swelling in the Veteran’s fifth right toe. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 3. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.