Citation Nr: 1311485 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-36 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from March 1987 to August 1990. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran filed a notice of disagreement (NOD) with that determination in November 2008, and timely perfected her appeal in September 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record discloses further development is necessary with respect to the Veteran's increased rating claim for her left foot disability. The Veteran contends that her service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. disability is worse than the 10 percent disability evaluation currently assigned. She claims that her symptoms warrants a higher rating and that her service-connected disability impacts her employment. The Veteran was last given a VA examination in September 2008 in order to establish the severity of her service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot disability. On the September 2009 Substantive Appeal, the Veteran reported that the examination done by the government contracted officials (QTC) did not truly reflect her injuries. She reported that she had requested a reexamination, but one had not been afforded to her. The Veteran reported such symptoms as less movement than normal in the joint, which did not allow for standing or walking for long periods of time; pain; incoordination; excess fatigue; and weakened movements. Additionally, she reported that she suffered from degenerative joint disease (bone spurring), tenderness under the metatarsal heads, excessive bone tissue and spurring formed around the screw and first metatarsal phalangeal joint, and hallux limits of the great toe. In this particular case, the September 2008 VA examination is too remote in time to address the current severity of the Veteran's service-connected left foot disability. Therefore, the Board must remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of her hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Lastly, the Board finds that a remand is also necessary to obtain any outstanding private treatment records with respect to the Veteran's increased rating claim for her left foot disability. The record reflects that the Veteran was receiving periodic private treatment for her hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot disability through September 2009. In a September 2009 statement, the Veteran reported that she visited a private doctor to have the severity of her medical conditions documented. It is unclear if the Veteran sought treatment from her private physician after that time. Because it appears that there may be outstanding private medical records dated after September 2009 that may contain information pertinent to her claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (20012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1) The AMC/RO should give the Veteran notice of the criteria and the type of evidence necessary to obtain an extraschedular rating under 38 C.F.R. § 3.321. 2) The AMC/RO should contact the Veteran and request that she provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated her for her service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3) After the foregoing, the Veteran should be scheduled for a VA examination to determine the current level of severity of her hallux abductovalgus, bunion deformity, and post-operative bunionectomy with Herbert screw fixation of the left foot. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, to include x-rays. All pertinent pathology found on examination should be included in the evaluation report. The examiner should write a comprehensive report discussing the current severity of the Veteran's hallux abductovalgus, bunion deformity, and post-operative bunionectomy with Herbert screw fixation of the left foot. The examiner should list all symptoms/impairment associated with or caused by the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. The examiner should specifically determine whether the Veteran has any bone spurring and/or degenerative joint disease due to the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. The examiner should then describe the severity of each symptom/impairment found to be associated with the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. The examiner should state whether the Veteran's service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot is equivalent/analogous to a moderate, moderately severe or severe foot injury. The examiner should state whether there is any reduction in range of motion based on the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. If so, this should be identified. In this regard, if a decrease in range of motion is found due to the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot, the examiner should identify the joint or joints affected. The examiner should then be asked to determine whether the affected joint(s) exhibit weakened movement, excess fatigability, instability, flare-ups or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. The examiner should describe all functional impairment (functional loss), due to the service-connected hallux abductovalgus, bunion deformity, post-operative bunionectomy with Herbert screw fixation, left foot. The examiner should identify the associated impairment/symptom that causes such functional loss. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In addition, the examiner should also discuss the Veteran's September 2009 statement. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is 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). 5) After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated, taking into consideration the provisions of 38 C.F.R. § 3.321. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran. After she has had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review. The appellant 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. 2012). _________________________________________________ K. OSBORNE 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).