12-22 779
12-22 779
| Board of Vet. App. | May 31, 2017Background
- Veteran served on active duty from Sept 1978 to Apr 1984 and appealed a November 2011 VA RO rating decision denying service connection for bilateral foot/toe disabilities.
- Veteran testified he had foot symptoms beginning in service, treated informally by a medic and by self-care, but with sparse or no contemporaneous documentation in the service treatment records.
- VA obtained some 1990s VA medical records noting an SSI application and later VA notes indicating a Workers’ Compensation claim; the SSA and Workers’ Compensation records were not yet obtained.
- A January 2015 VA examination diagnosed onychomycosis and onychodystrophy and opined against service connection, relying largely on absence of documentation during service.
- The Board found the January 2015 opinion inadequate because it (1) failed to explain why silence in records equates to absence of symptoms and did not account for the Veteran’s hearing testimony, and (2) failed to address other foot conditions (e.g., hammer toe, pes planus) encompassed by the broad foot claim.
- The Board remanded for additional development: obtain SSA and Workers’ Compensation records and obtain an addendum VA opinion (or new exam) addressing all foot disorders, causation, and expressly considering the Veteran’s statements and explaining reliance on record silence if used.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for bilateral foot/toe disability | Veteran asserts symptoms began in service and his foot conditions are related to service | VA/RO relies on lack of documented treatment in service records and January 2015 exam opinion finding no nexus | Remand for further development; no final merits decision made |
| Adequacy of January 2015 VA medical opinion | Veteran argues examiner should consider his lay testimony that he self-treated and saw a medic whose notes were not recorded | VA examiner relied on absence of treatment in STRs and did not address Veteran’s statements or other foot diagnoses | Opinion found inadequate; addendum opinion or new exam ordered that addresses Veteran’s statements and explains any reliance on silence in records |
| Scope of claim (all foot conditions) | Veteran’s claim encompasses all foot conditions including skin, pain, hammer toe, pes planus | RO/exam focused mainly on onychomycosis/onychodystrophy | Board found the claim broad; remand requires examiner address all current/past foot disorders and dates of resolution if any |
| Record development—obtaining non-VA records (SSA, Workers’ Comp) | Veteran’s non-VA records may contain relevant medical evidence supporting service connection | RO had not yet requested SSA or Workers’ Comp records | Board ordered attempts to obtain SSA and Workers’ Compensation records as potentially relevant; remand for readjudication after development |
Key Cases Cited
- Golz v. Shinseki, 590 F.3d 1317 (court held non-VA records like SSA files may be relevant and should be obtained)
- McKinney v. McDonald, 28 Vet. App. 15 (explaining that examiners must explain why silence in records supports a negative nexus)
- Fountain v. McDonald, 27 Vet. App. 258 (examiner must address lay statements and not merely rely on absence of documentation)
- Buczynski v. Shinseki, 24 Vet. App. 221 (examiner’s opinion must be fully informed and provide adequate rationale)
- Kutscherousky v. West, 12 Vet. App. 369 (appellant’s right to submit additional evidence after remand)