Citation Nr: 1308437 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-01 750 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial increased rating for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion, evaluated as noncompensably disabling from February 21, 2007 to June 18, 2008 and as 30 percent from September 1, 2008. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty in the Navy from October 1997 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia denied service connection for hypertension and granted service connection for posttraumatic degenerative joint disease of the right great toe at the interphalangeal joint with thickening and discoloration of the right great toenail (0%, from February 21, 2007). In July 2009, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. The Veteran's attorney was not present at the hearing, but the Veteran elected to proceed with the hearing without his attorney being present. In October 2009, the Board remanded the appeal for additional development. In a December 2010 rating decision, the RO awarded a temporary total (100 percent) rating for the right great toe disability, effective from June 19, 2008 to August 31, 2008, and thereafter awarded a compensable evaluation of 30 percent, effective from September 1, 2008, for this disorder. As this award does not constitute a full grant of all benefits possible, and as the Veteran has not withdrawn this issue, this increased rating claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2012, the Board denied a higher initial rating for another disability then on appeal and remanded the claims for service connection for hypertension and for a higher initial rating for the right great toe disability. In a November 2012 rating action, the Appeals Management Center (AMC) in Washington, D.C. granted service connection for hypertension. As the Veteran has not initiated an appeal of any aspect of that grant (to include the noncompensable rating, or effective date, assigned to that disorder), no issue pertaining to his hypertension remains in appellate status before the Board. For the reasons set forth below, the increased rating issue remaining on appeal is once again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND The Board finds that a remand is required to address a procedural deficiency. In the March 2012 remand, the Board asked the AMC to accord the Veteran an examination to determine the symptoms associated with his service-connected right great toe disability, without regard to any nonservice-connected right foot disorder. The Veteran underwent the requested examination in April 2012. The examiner noted that the Veteran had complained of soreness in the bottom of his feet during service and had been diagnosed with contusions of his forefoot. The examiner reported that the Veteran currently had bilateral pes planus. The examiner also noted that the Veteran had injured his right great toe during service and currently had degenerative joint disease of the right great toe interphalangeal joint status post joint fusion, which causes significant moderately severe symptoms of pain and swelling every week. In a November 2012 supplemental statement of the case (SSOC), the AMC cited the symptoms associated with the Veteran's pes planus noted in the above examination report and indicated that a 30 percent rating was being assigned for pes planus of the right foot. The AMC then cited the diagnostic code pertaining to pes planus and noted that a higher 50 percent rating was not warranted unless there was bilateral involvement. The AMC then indicated that the evidence does not show that the pes planus of the Veteran's right foot has worsened to warrant a higher evaluation. The AMC concluded, "Entitlement to an initial compensable rating for degenerative joint disease of the right great toe at the interphalangeal joint, status post joint fusion, evaluated as noncompensably disabling from February 21, 2007 to June 18, 2008 and as 30 percent disabling from September 1, 2008, remains denied." Given the reasons and bases in the SSOC, the record is unclear as to whether the AMC evaluated the correct disability or, in evaluating the correct disability, granted service connection for pes planus of the right foot. Either way, without discussion of the diagnostic codes pertaining to great toe disabilities, the AMC did not properly evaluate the Veteran's right great toe disability. Thus, readjudication of the increased rating claim on appeal is therefore required. Specifically, if the AMC intended to grant service connection for pes planus of the right foot, it should properly do so in a rating decision. Further, if the grant was intended, then the record raises the issue of entitlement to service connection for pes planus of the left foot, which has yet to be adjudicated. The Board notes that a grant of service connection for pes planus of the left foot could affect the evaluation of pes planus of the right foot, if service connection for the latter has in fact been granted. Thus, the unadjudicated issue is inextricably intertwined with the rating issue on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994). Therefore, the claim for a higher initial rating for a right great toe disability and pes planus of the right foot, if in order, should be readjudicated following the adjudication of the claim for service connection for pes planus of the left foot. Accordingly, the case is REMANDED for the following actions: 1. Clarify whether service connection for pes planus of the right foot has been granted. If so, then also adjudicate a claim for service connection for pes planus of the left foot and give the Veteran the opportunity to appeal the adjudication of the claim for service connection for pes planus of his left foot. 2. Then, readjudicate the claim for an increased rating for the service-connected right foot disability, evaluated as noncompensably disabling from February 21, 2007 to June 18, 2008 and as 30 percent disabling from September 1, 2008. [In adjudicating this issue, the agency of original jurisdiction should specifically set forth in a rating action whether the currently service-connected degenerative joint disease of the Veteran's right great toe at the interphalangeal joint, status post joint fusion, includes pes planus of his right foot.] If any aspect of this claim remains denied, the Veteran and his representative should be provided an SSOC and given an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters that 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 (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO 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. 38 C.F.R. § 20.1100(b) (2012).