Citation Nr: 1220107 Decision Date: 06/07/12 Archive Date: 06/20/12 DOCKET NO. 05-09 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 10 percent for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Counsel INTRODUCTION The Veteran had active service from September 1972 to May 1974. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2004 by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO). The Veteran also requested a Travel Board hearing in connection with the current claim. The hearing was scheduled and held before the undersigned Veterans Law Judge in March 2008. The Veteran testified at that time and the hearing transcript is of record. 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 By way of history, service connection for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads was granted in a rating decision dated June 1978. The RO evaluated the Veteran's bilateral foot disability as 10 percent disabling by analogy under Diagnostic Codes 7899-5279, effective February 13, 1978. The hyphenated code was intended to show that the Veteran's bilateral foot disability had symptoms of a skin disorder (Diagnostic Code 7899) and anterior metatarsalgia (Diagnostic Code 5279). The Veteran unsuccessfully tried several times over the intervening years to obtain a higher disability rating for his service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. Most recently, the Veteran filed an increased rating claim for this disability in January 2004. The RO denied the Veteran's claim in a rating decision dated September 2004. The Veteran was notified of this decision and provided his appellate rights. He perfected this appeal. Following the submission of additional evidence, the RO issued a rating decision in April 2007 in which it continued the Veteran's 10 percent disability rating for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. The Veteran's claim was remanded for additional evidentiary development in May 2008, to include providing the Veteran proper notice and affording him a VA examination to assess the severity of his service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. The required notice was provided and the Veteran was afforded a VA examination in January 2010. In the interim, the Veteran was granted service connection for a left peroneal nerve injury with foot drop. See March 2010 rating decision. The RO evaluated this disability as 30 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8521 (paralysis of the external popliteal nerve (common peroneal nerve)), effective May 11, 2007. The RO subsequently increased the Veteran's disability rating for a left peroneal nerve injury with foot drop to 40 percent and assigned an effective date of April 5, 2006. See December 2011 rating decision. The Veteran's increased rating claim for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads was again before the Board in October 2010 and remanded pursuant to Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the Board's remand order). Specifically, the Board determined that the January 2010 VA examination report failed to identify with specificity those symptoms attributable to the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads or to fully consider other potentially applicable diagnostic codes contained in 38 C.F.R. § 4.71a. The Veteran was subsequently afforded another VA examination in January 2011. He reported subjective complaints of daily pain (i.e., a "10" on a scale of one to ten), weakness, stiffness, some swelling, fatigability, lack of endurance, and imbalance. It was also noted that the Veteran used prescribed pain medications, orthopedic shoes with insoles, and a scooter. The impression was moderate bilateral bunion formation. The examiner described the severity of the Veteran's right foot bunion formation as being asymptomatic, but described the severity in the left foot as moderate. The examiner also diagnosed moderate metatarsalgia in the left foot, asymptomatic flat foot deformity in the right foot, and moderate flat foot deformity in the left foot. Regarding the Veteran's daily activities, he was unable to walk "much at all." He was also unable to perform household chores or participate in activities without his scooter. The examiner also noted that the Veteran was unemployable and had been for "quite awhile." The Board sincerely regrets the delay to the Veteran in this case, but finds the January 2011 VA examination inadequate for evaluation purposes. Specifically, the Board's October 2010 remand order directed the examiner to state whether the Veteran's service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads resulted in actual loss of use of either foot. Additionally, the examiner failed to comment on the presence or absence of additional disability caused by the Veteran's symptoms of pain, weakness, stiffness, some swelling, fatigability, lack of endurance, and imbalance. Accordingly, another VA examination is required to address these issues. See Stegall, 11 Vet. App. at 270-71. The Veteran's representative has raised the possibility of entitlement to an extraschedular rating under 38 C.F.R. § 3.321. See May 2012 informal hearing presentation. The Board also finds that the evidence of record reasonably raises a claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. Moreover, the RO must consider on remand whether separate disability ratings for the Veteran's service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads are warranted. A remand is required to address these issues. VA is also required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011); Bell v. Derwinski, 2 Vet. App. 611 (1992). The evidence of record reflects that the Veteran receives VA treatment. Therefore, the RO must request all VA medical records pertaining to the Veteran from September 18, 2007. In addition, the Veteran must be contacted on remand and asked to identify any and all non-VA sources of treatment for the disability at issue that are not already of record. Further, the Veteran must indicate whether he receives benefits from the Social Security Administration. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issue currently on appeal, including any and all records from the Social Security Administration. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must obtain all relevant VA medical records from September 18, 2007. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After the above development is completed, the Veteran must be afforded the appropriate VA examination to determine the current severity of his service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. The claims file and Virtual VA records must be reviewed by the examiner in conjunction with the examination and the examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All indicated tests as deemed necessary by the examiner to properly evaluate the Veteran's service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads must be conducted. The examiner must record pertinent medical complaints, symptoms, and clinical findings, and comment on the functional limitations, if any, caused by the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads after repetitive use. The examiner must also state whether the Veteran has actual loss of use of either foot as a result of the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the feet, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. The examiner must also state whether the service-connected bilateral bunion formation with metatarsalgia of the distal first metatarsal heads is considered moderate, moderately severe, or severe. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The Veteran must be afforded a VA examination to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. The claims file and Virtual VA records must be reviewed in conjunction with the examination and the examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on a review of the evidence of record, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities, either alone or acting in concert, preclude or would preclude him from securing and following substantially gainful employment consistent with his education and occupational experience, without consideration of the Veteran's age and nonservice-connected disorders. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2011). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 6. The RO must also consider in the first instance the issue of entitlement to an extraschedular rating for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads. If appropriate, the RO must also consider referral of the claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service pursuant to 38 C.F.R. § 3.321(b)(1). Similarly, if, in the course of adjudicating the claim of a total disability rating based on individual unemployability, the RO finds that the Veteran does not meet the rating criteria under 38 C.F.R. § 4.16(a), but his service-connected disabilities prevent him from following a substantially gainful occupation, the RO must refer the appeal to the Chief Benefits Director or the Director, Compensation and Pension Service, for extraschedular consideration. 7. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, to include consideration of separate disability ratings for bilateral bunion formation with metatarsalgia of the distal first metatarsal heads, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals 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. 2011). _________________________________________________ ROBERT E. SULLIVAN 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) (2011).