BVA9505142 DOCKET NO. 93-11 999 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral hammer toes and claw toes. 2. Entitlement to a total disability evaluation for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1954 to November 1957. This appeal arose from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO denied entitlement to service connection for bilateral hammer toes and claw toes, and a total disability evaluation for compensation on the basis of individual unemployability. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. REMAND Service connection has been granted for a right plantar callosity under the 3rd metatarsal head, evaluated as 10 percent disabling; and a left plantar callosity under the 3rd metatarsal head, evaluated as 10 percent disabling. The combined schedular evaluation is 20 percent (bilateral factor considered). At a February 1993 VA examination, the examiner noted that after reviewing the record, the veteran did not develop hammer toes until the last few years. He noted the appellant had had the plantar keratoses for about the last 30 years. The examiner noted he could not directly relate the hammer toes to the calluses. In his May 1993 appeal to the Board the veteran noted that the VA examiner who had examined him in February 1993 was laboring under the mistaken impression that his hammer toes and claw toes were of very recent origin. The claimant noted that in the early 1970's he was in fact treated for these disorders at the Wade Park VA Medical Center in Cleveland, Ohio. The representative at the Board has directed the Board's attention to documentation on file noting the veteran's treatment at a VA medical center in 1973, records pertaining to which are not on file. See Green v. Derwinski, 1 Vet.App. 121, 124 (1991) ([F]ulfillment of the statutory duty to assist...includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." (emphasis added)). The Board is of the opinion that association with the claims file of the veteran's VA medical reports allegedly for treatment of hammer toes and claw toes in the early 1970's at the local VA medical center and in 1973 at the VA medical facility in Canton, Ohio, would provide a VA examiner with the ability to render a more informed opinion as to the etiology of bilateral hammer and claw toes contended to be secondary to the service-connected bilateral plantar callosities. Pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994), the Board is deferring adjudication of the issues prepared and certified for appellate review pending a REMAND of the case to the RO for further development as follows: 1. The RO should request and associate with the claims file photocopies of the complete records pertaining to the veteran's treatment since the early 1970's at the Wade Park VA Medical Center in Cleveland, Ohio, and at the VA Medical Center in Canton, Ohio, with particular reference to treatment in 1973 at the clinic in Canton, Ohio. 2. The veteran should be scheduled for a VA examination by a podiatrist who has not previously treated or examined him to determine the nature, extent, and etiology of bilateral hammer and claw toes. The examination should be conducted in accordance with the diagnostic procedures outlined in Chapter 2 of the VA Physician's Guide for Disability Evaluation Examinations. All indicated studies are to be conducted. The examiner must be requested to provide an opinion as to whether it is at least as likely as not that bilateral hammer and claw toes are etiologically related to the service- connected bilateral plantar callosities. The claims file and obtained evidence must be made available to and reviewed by the examiner prior to the examination. Any opinion expressed must be accompanied by a complete rationale. 3. The RO should review the examination report to ensure that it is in complete compliance with the instructions contained in this remand. If the examination report is not in complete compliance, the RO should take appropriate corrective action. 4. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for bilateral hammer and claw toes, and a total disability evaluation for compensation on the basis of individual unemployability. If the benefits requested on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).