Citation Nr: 1220102 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 06-28 810 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for bilateral foot blistering and bilateral toe curling. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a right great toe injury effective August 25, 2004. 3. Entitlement to a disability rating in excess of 20 percent for residuals of a right great toe injury effective June 21, 2010. 4. Entitlement to service connection for ischemic heart disease. 5. Entitlement to a total evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1965 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was previously before the Board in March 2010, when it remanded the Veteran's claim for additional development. The issue of entitlement to service connection for sinus problems has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In February 2012, the Veteran submitted additional argument in support of his claims. This evidence has not been reviewed by the AOJ, and the Veteran affirmatively requested that the AOJ consider this argument in the first instance. Without a waiver of consideration by the agency of original jurisdiction, the AOJ must consider this additional evidence and readjudicate the Veteran's claims. See 38 C.F.R. §§ 19.37, 20.1304 (2011). Additionally, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, before the Board may rely on an examiner's conclusion that an etiological opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. See Jones v. Shinseki, 23 Vet. App. 382 (2011) (noting that while VA need not "proceed through multiple iterations of repetitive medical examinations until it obtains a conclusive opinion or formally declares that further examinations would be futile," it must be clear "that the examiner has not invoked the phrase 'without resort to mere speculation' as a substitute for the full consideration of all pertinent and available medical facts to which a claimant is entitled.") In the instant case, the Board remanded the Veteran's claim in order to, among other things, provide the Veteran with VA examinations of his bilateral feet and right great toe. The Veteran received a foot examination in June 2010 that neither contained a review of the Veteran's claims file as was required by the Board's March 2010 Remand, nor did it answer the questions posed by the Veteran's March 2010 Remand. Additionally, the examiner stated that the etiological relationship between the Veteran's diagnosed claw toes and the service-connected injury to the right great toe would be speculative in nature, but without explaining why this would be so. The Veteran received a skin examination in December 2011 that included a review of the Veteran's claims file. Unfortunately, the Board requested a number of opinions in its March 2010 Remand that were not adequately addressed by either of the examiners, and additional examinations must be performed on remand. Additionally, when a veteran files a notice of disagreement (NOD) and the AOJ has not issued a statement of the case (SOC), the issue must be remanded to the AOJ for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). When considering whether a statement that could constitute an NOD takes the proper form, the Court has stated VA must liberally construe all documents filed by the veteran. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). In the instant case, in his February 2012 statement, the Veteran stated that he believed he had "weak heart valves" as a result of in-service exposure to herbicides. The Board construes this statement as a timely disagreement with the August 2011 rating decision denying service connection for ischemic heart disease, claimed as weakened heart muscle with circulation problems. See 38 C.F.R. §§ 20.201, 20.302 (2011). No SOC has been issued as to this issue. Accordingly, this claim must be remanded to allow the AOJ to provide the Veteran with an SOC regarding this issue. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92). This issue will be returned to the Board after issuance of the SOC only if it is perfected by the Veteran's filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following actions: 1. Issue an SOC pertaining to the Veteran's claim of entitlement to service connection for ischemic heart disease, claimed as weakened heart muscle with circulation problems. In connection therewith, the Veteran and his representative should be provided with appropriate notice of his appellate rights. 2. Review the Veteran's claims file, to specifically include evidence in the Veteran's claims file received since the claim was last adjudicated, and to complete any additional development that it deems necessary as a result of such review. 3. Then, the Veteran's claims file should be forwarded to a VA examiner of appropriate expertise in orthopedics or podiatry, but not to the orthopedist who conducted the June 2010 examination. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must explicitly state that this review occurred. All indicated physical examinations and tests should be performed. A. With respect to the Veteran's claim for service connection for bilateral foot blistering and bilateral toe curling, the examiner must: i. Describe with detail the nature of the Veteran's bilateral foot and/or toe condition. ii. For any bilateral foot and/or toe condition identified, provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is causally or etiologically related to the Veteran's active service. iii. For each bilateral foot and/or toe condition that was neither incurred in nor aggravated by service, provide an opinion as to whether it is at least as likely as not that the disability is: a. causally or etiologically related to the Veteran's service-connected disability of the great right toe; or b. aggravated by the Veteran's service-connected disability of the great right toe. If the Veteran's service-connected disability of the right great toe aggravates (i.e., permanently worsens) the bilateral foot and toe condition, the examiner should identify the percentage of disability that is attributable to such aggravation. B. With respect to the Veteran's claim for an increased rating for residuals of an injury to the great right toe, the examiner must describe the full extent of the residuals of the injuries to the Veteran's great right toe, to include effects on the Veteran's toenail, surrounding musculature, relevant bones and joints, and associated surgical scars. This description should specifically address whether the Veteran's osteoarthritis of the right great toe is related to his active duty service, including the in-service injury to his right great toe. Additionally, the examiner should address whether the post-service surgery to the Veteran's right great toe is related to the in-service injury to the right great toe. 3. Then, schedule the Veteran for an examination to evaluate the effects of his service-connected disabilities on his ability to obtain substantially gainful employment. The examination should be conducted by an examiner who is qualified to conduct such an examination and offer an opinion regarding the Veteran's ability to procure and maintain gainful employment consistent with his education and occupational experience, irrespective of age and any non-service-connected disorders. The claims file must be made available for review and the examiner's report should reflect that such review occurred. Specifically, the examiner must offer an opinion as to whether the Veteran's service-connected disabilities are alone or in concert so severe as to preclude substantially gainful employment. If the Veteran's non-service-connected disabilities preclude substantially gainful employment, such should be stated. The examiner should not base the opinion solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The opinion provider should cite to the medical and competent lay evidence of record, including the Veteran's contentions as to his ability to maintain employment, and explain the rationale for all opinions given. 4. Thereafter, review the claims folder to ensure that the foregoing development has been completed. In particular, review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand, and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the above action, the Veteran's claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the issues should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2010). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2011).