Citation Nr: 1310062 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 02-06 757A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to July 12, 2007, for bilateral hallux valgus with metatarsalgia and pes cavus. 2. Entitlement to a rating in excess of 30 percent on and after July 12, 2007, for bilateral hallux valgus with metatarsalgia and pes cavus. 3. Entitlement to special monthly compensation prior to March 16, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to August 1960. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND In September 2000, the Veteran submitted a claim of entitlement to an increased rating for his service-connected bilateral hallux valgus with metatarsalgia and pes cavus. After this claim was denied in a February 2001 rating decision, the Veteran perfected an appeal to the Board. The extensive adjudicative history with respect to this claim need not be repeated here. It is sufficient to observe that, in an August 2005 Board decision, the rating assigned to the Veteran's service-connected bilateral hallux valgus with metatarsalgia and pes cavus was increased to 20 percent. The Veteran appealed, seeking a higher rating. In a July 2007 memorandum decision, the U.S. Court of Appeals for Veterans Claims (Court) determined that a remand was necessary in order for the Board to consider the issue of entitlement to special monthly compensation based on the loss of use of a foot in the context of the Veteran's claim of entitlement to a increased rating for bilateral hallux valgus with metatarsalgia and pes cavus. In March 2008, the Board remanded the issue of entitlement to a rating in excess of 20 percent for bilateral hallux valgus with metatarsalgia and pes cavus and the issue of entitlement to special monthly compensation based on the loss of use of a foot for further development. After the directed development had been accomplished, the RO contemporaneously adjudicated the issues in a March 2010 supplemental statement of the case determination, denying a rating in excess of 20 percent for bilateral hallux valgus with metatarsalgia and pes cavus and denying entitlement to special monthly compensation based on the loss of use of a foot. These issues were then remitted to the Board for further appellate review. In December 2010, the Board determined that a 30 percent rating was warranted for bilateral hallux valgus with metatarsalgia and pes cavus; an effective date was not assigned thereto. The Board also denied the Veteran's claim of entitlement to special monthly compensation based on the loss of use of a foot. The Veteran again appealed, seeking a higher rating and seeking special monthly compensation. In July 2011, the Veteran's representative and VA's Office of General Counsel filed a Joint Motion requesting that the Court vacate the Board's December 2010 decision, insofar as it denied the Veteran's claim of entitlement to a rating in excess of 30 percent for bilateral hallux valgus with metatarsalgia and pes cavus and denied the claim of entitlement to special monthly compensation based on the loss of use of a foot. The parties agreed that remanding the case for further development was necessary because the Board, in the December 2010 decision, relied upon an inadequate September 2009 VA examination. The December 2010 Board decision was not disturbed to the extent that a 30 percent rating was granted for bilateral hallux valgus with metatarsalgia and pes cavus. Based on the directives of the Joint Motion, the Court issued an Order vacating the Board's December 2010 decision as discussed and remanded the case to the Board for further development and readjudication. In February 2012, the Board remanded the Veteran's claim of entitlement to a rating in excess of 30 percent for bilateral hallux valgus with metatarsalgia and pes cavus and entitlement to special monthly compensation based on the loss of use of a foot. Therein, the Board directed the RO to obtain a supplemental opinion from the September 2009 VA examiner or afford the Veteran a new VA examination. The Board also directed the RO to adjudicate the claims on appeal and, if any benefit remained denied, issue the Veteran and his representative a supplemental statement and provide them the opportunity to respond. Then, the RO was to remit the claims to the Board for further appellate review. Although the Veteran's claim was captioned as entitlement to a rating in excess of 30 percent for bilateral hallux valgus with metatarsalgia and pes cavus, an effective date for the 30 percent rating had not been assigned at the time of the February 2012 remand. As such, in an October 2012 rating decision, the RO effectuated the Board's December 2010 decision to grant a 30 percent rating to the Veteran's bilateral hallux valgus with metatarsalgia and pes cavus, assigning an effective date of July 12, 2007. Accordingly, given that this appeal originated from the Veteran's September 2000 claim, the Board, in February 2012, effectively remanded the issues of entitlement to a rating in excess of 20 percent prior to July 12, 2007, and entitlement to a rating in excess of 30 percent on and after July 12, 2007, both with respect to the Veteran's bilateral hallux valgus with metatarsalgia and pes cavus. However, following the February 2012 remand, the RO only adjudicated the issue of whether the Veteran was entitled to a rating in excess of 30 percent for his bilateral hallux valgus with metatarsalgia and pes cavus. In so doing, as demonstrated by a January 2013 supplemental statement of the case, the only evidence of record reviewed by the RO was a December 2012 VA examination report. As such, the Board finds that the RO did not substantially comply with directives of the Board's February 2012 remand and, thus, a remand for corrective action is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). With respect to the issue of entitlement to special monthly compensation based on the loss of use of a foot, following the February 2012 remand, the Veteran was afforded a VA examination in March 2012. Ultimately, in a December 2012 addendum, the March 2012 VA examiner opined that the Veteran's loss of use of his feet was not etiologically associated with his service-connected bilateral hallux valgus with metatarsalgia and pes cavus. Instead, the VA examiner opined that the Veteran's loss of use of his feet was associated with his service-connected spinal stenosis. Consequently, in a January 2013 rating decision, the RO granted the Veteran's claim of entitlement to special monthly compensation based on the loss of use of feet and assigned a total rating thereto, effective March 16, 2012. However, this grant did not constitute a full grant of benefits sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that the veteran is presumed to seek the maximum benefit allowed by law or regulations, where less than the maximum benefit was awarded). As discussed above, the Court determined that the issue of entitlement to special monthly compensation based on loss of use of a foot was a requisite consideration with respect to the Veteran's claim of entitlement to an increased rating for his service-connected bilateral hallux valgus with metatarsalgia and pes cavus. Given that the Veteran's increased rating claim for bilateral hallux valgus with metatarsalgia and pes cavus originated in September 2000, the Veteran's entitlement to special monthly compensation based on the loss of use of a foot must be a consideration throughout the pendency of this appeal. Although the RO granted entitlement to special monthly compensation based on loss of use of feet effective from March 16, 2012, the issue of entitlement to special monthly compensation based on loss of use of feet prior to March 16, 2012, is still on appeal. This claim was not addressed by the RO in a supplemental statement of a case following the February 2012 remand. As such, the Board finds that the RO failed to substantially comply with the directives of the February 2012 remand with respect to the issue of entitlement to special monthly compensation prior to March 16, 2012. Consequently, a remand is required in order for the RO to undertake corrective actions. Stegall, 11 Vet. App. at 271; see Manlicon v. West, 12 Vet. App. 238 (1999). Additionally, the Board observed that the Veteran was afforded a VA examination in March 2012, and the RO obtained a supplemental opinion from the March 2012 VA examiner in December 2012. Neither of the opinions rendered by the March 2012 VA examiner addressed the issue of when the Veteran first lost the use of his feet as a consequence of a service-connected disability. As such, and given that the evidence of record is otherwise inadequate to address this issue, the Board finds that a remand is warranted in order to obtain a supplemental opinion. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes). Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to obtain a supplemental opinion from the March 2012 VA examiner. The Veteran's claims file must be made available to and contemporaneously reviewed by the examiner. The examiner must then provide an opinion as when the Veteran first lost the use of his feet as a consequence of a service-connected disability. A complete rationale for all opinions must be provided. 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. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If the March 2012 VA examiner is unavailable to render the requested supplemental opinion, the RO must attempt to obtain a supplemental opinion from a new VA examiner. The Veteran's claim file must be made available to, and contemporaneously reviewed by, the examiner. The examiner must then provide an opinion as to when the Veteran first lost the use of his feet as a consequence of a service-connected disability. A complete rationale for all opinions must be provided. 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. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Thereafter, the RO must adjudicate the issues of entitlement to a rating in excess of 20 percent prior to July 12, 2007, for bilateral hallux valgus with metatarsalgia and pes cavus; entitlement to a rating in excess of 30 percent on and after July 12, 2007, for bilateral hallux valgus with metatarsalgia and pes cavus; and entitlement to special monthly compensation based on loss of use of a foot prior to March 16, 2012. If any benefit remains denied, the RO must issue the Veteran and his representative a supplemental statement of the case and provide them the opportunity to respond. The case must then be returned to the Board for 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). These claims 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 Supp. 2012). _________________________________________________ U. R. POWELL 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) (2012).