Citation Nr: 1301882 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-34 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable disability rating for hammertoes of the 2nd through 5th toes of the right and left feet, status post fracture of the right 5th DIP joint, and status post surgical repair of the left 2nd through 5th toes with tenotomy of the 5th toe and surgical repair of the right 5th toe. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2003 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that assigned noncompensable evaluations for hammertoes of toes 2, 4, and 5 of the right foot, and toes 2, 3, 4, and 5 of the left foot, after granting service connection for the same. In September 2007, the Veteran submitted a notice of disagreement and subsequently perfected her appeal in September 2009. Her case is currently under the jurisdiction of the VA RO in Atlanta, Georgia. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on her part is required. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the readjudication of her claim of entitlement to a compensable initial rating for her bilateral hammertoes. The Veteran was last examined for her bilateral foot disability in April 2008. Since the time of the last examination, she has submitted treatment records from Nellis Air Force Base (AFB) indicating that she underwent surgery for her foot disability in December 2009. In light of this surgery, and the apparent change of the nature of the condition, the most recent VA examination may not reflect the current state of the Veteran's hammertoes. As such, the Board finds it is appropriate to afford the Veteran a new VA examination to evaluate the current severity of her hammertoes. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As the United States Court of Appeals for Veterans Claims (Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its medical findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's claim of entitlement to an increased initial rating for hammertoes of the 2nd through 5th toes of the right and left feet, status post fracture of the right 5th DIP joint, and status post surgical repair of the left 2nd through 5th toes with tenotomy of the 5th toe and surgical repair of the right 5th toe must be remanded for a new VA examination. Reasonable efforts with respect to records in Federal custody such as VA treatment records consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2011). The Veteran shall be notified if this circumstance arises. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). Here, as noted above, the December 2009 surgery was conducted at Nellis AFB. Records related to pre-surgery and post-surgery evaluations should be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain from Nellis AFB the Veteran's complete inpatient and outpatient records pertaining to the treatment of her bilateral foot disability. A negative development should be properly annotated in the record. 2. The Veteran should be scheduled for a VA examination in order to determine the current nature and severity of her bilateral hammertoes disability. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies should be completed. The examiner must state whether either foot disability is manifested by claw foot. A complete rationale must be provided for any opinion provided. 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to a compensable initial rating for hammertoes of the 2nd through 5th toes of the right and left feet, status post fracture of the right 5th DIP joint, and status post surgical repair of the left 2nd through 5th toes with tenotomy of the 5th toe and surgical repair of the right 5th toe should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop her claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ MICHAEL A. HERMAN 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 Court. 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. See 38 C.F.R. § 20.1100(b) (2012).