Citation Nr: 0810046 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 03-05 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for a left fifth hammer toe with tender calluses. 2. Entitlement to service connection for a low back disorder secondary to the left fifth hammer toe disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Paul S. Rubin, Associate Counsel INTRODUCTION The veteran had active military service from November 1959 to November 1962 and from July 1964 to June 1965. This case comes to the Board of Veterans' Appeals (Board) from November 2001 and December 2002 decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In the November 2001 decision, the RO granted the veteran's claim for service connection for a left fifth hammer toe with tender calluses and assigned an initial 10 percent rating. He filed a timely appeal, seeking a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals his initial rating, VA must consider whether he is entitled to a "staged" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). Subsequently, in January 2003, the RO issued another decision increasing the rating from 10 to 20 percent, but denying a rating higher than that. The veteran has since continued to appeal, requesting a rating of at least 30 percent for his left fifth hammer toe. See AB v. Brown, 6 Vet. App. 35, 39 (1993). In the other December 2002 rating decision at issue, the RO denied the veteran's claim for service connection for a low back disorder, which he alleges is secondary to his already service-connected left fifth hammer toe disability. The Board remanded this case in January 2005 for further development. Upon completion of this development, including having the veteran examined in June 2005 for a VA medical opinion, the Board issued an October 2006 decision denying both of his claims. He appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a December 2007 Order and Joint Motion, the Court vacated the Board's decision on both claims and remanded the case to the Board for compliance with directives specified, including providing a more adequate and less confusing VA examination and opinion pertaining to the claims. To comply with the Court's Order, the Board is again remanding this case to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND First, concerning Veterans Claims Assistance Act (VCAA) notice, VA must ask the veteran to provide any evidence in his possession pertaining to his claims. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). He did not receive this notice in either the September 2002 or March 2005 VCAA letters. In addition, the RO (AMC) must send him a notice letter complying with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This letter should specifically advise him concerning the elements of a disability rating and an effective date. Second, since receiving this case back from the Court, the Board has sent the veteran a letter in February 2008 informing him he had 90 days to submit additional evidence. He responded later that same month, submitting an additional personal statement and waiving his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304(c) (2007). He further asked the Board to please proceed immediately with the readjudication of his claims. His statement listed what appears to be recent pertinent treatment by private doctors for the conditions at issue. However, he did not submit the actual treatment records - instead, only listed the names of the clinics, the doctors that treated him, the dates he was seen, and phone numbers to contact the facilities mentioned, etc. He also did not provide any addresses. Effective February 22, 2002, new regulations permitted the Board to obtain evidence, clarify the evidence, cure procedural defects, or perform any other action essential to appellate review in many appeals properly before it without remanding the case back to the agency of original jurisdiction (AOJ) - which, here, is the RO. See 67 Fed. Reg. 3,099 (Jan. 23, 2002) (codified at 38 C.F.R. §§ 19.9, 19.31, 20.903 (2002)). The new rules also permitted the Board to consider additional evidence it had obtained without obtaining a waiver of initial RO review from the appellant. The regulatory provision 38 C.F.R. § 20.1304(c) was removed in its entirety. In May 2003, however, in Disabled American Veterans (DAV) v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) invalidated the regulatory provision in 38 C.F.R. § 19.9 that allowed the Board to develop evidence on a claim. The Federal Circuit held that 38 C.F.R. § 19.9(a)(2) and the amended rule codified at 38 C.F.R. § 20.1304 were inconsistent with 38 U.S.C. § 7104(a). The Federal Circuit held that section 19.9(a)(2) denies appellants "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration and without having to obtain a waiver of the right to initial AOJ review from the appellant. So according to the Federal Circuit Court's interpretation of 38 U.S.C.A. § 7104, generally, the Board cannot consider additional evidence, which has not been initially considered by the AOJ, unless it obtains a waiver from the appellant to do so. Id. More recently, VA amended 38 C.F.R. § 20.1304, effective October 4, 2004, to require the Board to remand cases to the RO when the Board has received additional evidence, unless the appellant has waived initial consideration by the RO. See 69 Fed. Reg. 53,807, 53,808 (Sept. 3, 2004) (codified at 38 C.F.R. § 20.1304(c) (2007)). Here, although the veteran submitted the required waiver to have the Board consider the additional evidence he mentioned in the first instance (i.e., without having to first remand the case to the RO for its' initial consideration), he did not submit the actual treatment records to which he referred. Rather, he merely identified the dates of his treatment, the names of some of the clinics where he was treated, and some of their phone numbers. He did not provide any address information. VA is required to make reasonable efforts to obtain all "relevant" records, including private records like these, which the veteran adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). Since the development of claims is now vested entirely with the Veterans Benefits Administration (VBA) - which oversees the RO and AMC, that is who must attempt to obtain these additional records. The Board no longer has this authority. Third, pursuant to the December 2007 Order and Joint Motion, the Court vacated the Board's October 2006 decision so the Board may request another VA medical examination and opinion - this time that is adequate for rating purposes for the claims at issue. Specifically, the Court found that the June 2005 VA examination and opinion, which was the result of a prior Board remand, was inadequate because the examiner: (1) falsely indicated that the veteran's left fifth hammer toe with tender calluses disability was not service connected; (2) failed to provide adequate consideration and discussion of the factors of functional loss for this disability as discussed in 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995); (3) failed to discuss how this disability impacts on the veterans' activities of daily living, including his employment per 38 C.F.R. § 4.10; and (4) failed to clearly determine whether this disability was causing or aggravating any back or other foot disorder to warrant granting secondary service connection for additional disability as discussed in 38 C.F.R. § 3.310(a) and (b) (2007). See, too, Allen v. Brown, 7 Vet. App. 439, 448 (1995). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Although, regrettably, it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's previous January 2005 remand directive insofar as providing a more adequate and thorough VA examination and opinion for the claims at issue. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, this case is REMANDED for the following development and consideration: 1. Send the veteran a corrective VCAA notice letter asking that he provide any evidence in his possession pertaining to his claims at issue. Furthermore, this letter should comply with the recent Court case of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), specifically insofar as advising him of the disability rating and effective date elements of his claims. 2. Contact the veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain the private medical treatment records he recently identified in his February 2008 personal statement. He mentioned having received relevant treatment from S.A.W. at the Costal Podiatry Clinic, apparently in January 2008, and from R.T. of the Coastal Orthopedic Association, apparently in February 2008. Ask that he assist, if possible, in obtaining these records by providing the addresses of these doctor's practices or by providing their treatment records, himself, if for example he has them in his personal possession. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them. 3. Have the veteran undergo another appropriate VA examination to determine the nature and etiology of any current low back disorder or other foot disorder, separate and apart from his service-connected left fifth hammer toe with tender calluses disability. He is hereby advised that failure to report for his scheduled VA examination, without good cause, may have adverse consequences on his claims. The examination should include any diagnostic testing or evaluation deemed necessary. And the claims file, including a complete copy of this remand and the Joint Motion, must be made available for review of his pertinent medical and other history - including, in particular, the records of any treatment in question. Based on a physical examination and comprehensive review of the claims file, the examiner is asked to indicate whether it is at least as likely as not (50 percent or more probable) that any current low back pain/disorder is proximately due to or is permanently aggravated by the veteran's service-connected left fifth hammer toe with tender calluses disability. In addition, the examiner is asked to indicate whether it is at least as likely as not (50 percent or more probable) that any other foot disabilities present are proximately due to or are permanently aggravated by the veteran's service-connected left fifth hammer toe with tender calluses disability. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. If the examiner is unable to provide the requested opinion, please expressly indicate this and discuss why this is not possible or feasible. In addition, either this VA examiner or other appropriate VA examiner should determine the current severity of the veteran's left fifth hammer toe with tender calluses disability. The examiner should discuss whether the veteran has additional functional loss from this disability - including additional limitation of motion above and beyond that demonstrated, due for example to the extent of his pain and painful motion, or due to premature/excess fatigability, weakness or weakened movement, or incoordination, including during times when his symptoms are most prevalent, e.g., during prolonged use or "flare-ups." See 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the examiner should discuss how the veteran's service-connected left fifth hammer toe with tender calluses disability impacts upon his activities of daily living, including his employment per 38 C.F.R. § 4.10. When making these determinations, the examiner must accept the fact that the veteran's left fifth hammer toe with tender calluses disability is already service connected. 4. Then, after giving the veteran time to respond to the additional VCAA notice, readjudicate his claims in light of any additional evidence received since the July 2005 supplemental statement of the case (SSOC). If the claims are not granted to his satisfaction, send him and his representative another SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 Supp. 2007). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).