Citation Nr: 1320402 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-02 834 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA)Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for postoperative Freiberg's disease of the right 2nd toe, currently rated as 10 percent disabling. 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to postoperative Freiberg's disease of the right 2nd toe REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1996 to January 2004. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2009 rating decision in which the RO, inter alia, denied a claim for an increased rating for post operative Freiberg's disease of the right 2nd toe. In October 2009, the Veteran filed a notice of disagreement (NOD) with the denial of this claim. A statement of the case (SOC) was issued in December 2009, and following the completion of a Supplemental SOC in February 2010, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) latter in February 2010. For the reason explained below, the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU due to postoperative Freiberg's disease of the right 2nd toe. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the matters on appeal is warranted, even though such will, regrettably, delay an appellate decision on these matters. The Board notes that the Veteran was last afforded a VA examination to assess the severity of his postoperative Freiberg's disease of the right 2nd toe four years ago in June 2009. The Veteran's representative contends that this examination is too old to adequately evaluate the disability on appeal and requested that the claim be remanded so as to allow the Veteran be afforded a new examination should the Board determine that an increased rating could not be assigned on the basis of the evidence of record. In his January 2010 substantive appeal, the Veteran described possible worsening symptoms, as he asserted therein that "as of now," he did not have the full range of motion of any of the toes of his right foot due to the manner in which they were fused after the surgery for his service-connected 2nd right toe. Accordingly, given the amount of time that has elapsed since the Veteran was last afforded a VA examination to assess the disability at issue, the request by the Veteran's representative for an examination, and the indication of possible worsening disability by the Veteran, the RO should arrange for further examination of the Veteran in regard to his claim for an increased rating. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines, as the Board does in the instant case, that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. With respect to the issue of TDIU, in his January 2010 substantive appeal, the Veteran reported that due to severe pain in this right foot, the walking, squatting, and extended amounts of standing required to operate his landscaping company forced him to sell this business. As such, this report raises a claim for TDIU as a component of the matter of his claim for entitlement to a higher rating for postoperative Freiberg's disease of the right 2nd toe. See Rice, 22 Vet. App. at 447. The Board notes that the RO has not meaningfully considered the Veteran's entitlement to a TDIU due to postoperative Freiberg's disease of the right 2nd toe. Therefore, after giving the Veteran an opportunity to file a formal claim for TDIU due to postoperative Freiberg's disease of the right 2nd toe (and accomplishing other actions, noted below), to avoid any prejudice to the Veteran, the RO should fully adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to arranging for further examination, to ensure that the record before the examiner is complete and that all due process requirements are met, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the matters on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 , 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matters on appeal. The RO's adjudication of the claims should include, with respect to the increased rating claim, whether a staged rating, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate; and, with respect to TDIU due to postoperative Freiberg's disease of the right 2nd toe, whether the procedures of 38 C.F.R. § 4.16(b) pertaining to assignment of an extra-schedular TDIU are invoked (as appropriate). Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for TDIU due to service-connected postoperative Freiberg's disease of the right 2nd toe. 2 Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the matters on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA examination of his right foot, by an appropriate medical provider, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and all lay assertions. The examiner should conduct range of motion testing of any affective joints (expressed in degrees). The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service connected Freiberg's disease of the right 2nd toe. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. To the extent possible, the examiner should provide an assessment of whether the service connected Freiberg's disease of the right 2nd toe is most accurately described as "moderate," "moderately severe" or "severe" disability in the right foot. The examiner should also render an opinion, based upon review of the record and consistent with sound medical principles, as to whether-without regard to nonservice-connected disability(ies) or advancing age-it is s at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's service-connected postoperative Freiberg's disease of the right 2nd toe, alone, renders him unable to obtain or retain substantially gainful employment. The examiner should set forth all examination findings and any test results, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a)copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action must be undertaken to avoid further remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for an increased rating for postoperative Freiberg's disease of the right 2nd toe, as well as the matter of a TDIU due to postoperative Freiberg's disease of the right 2nd toe, in light of all pertinent evidence and legal authority, Such consideration should include, with respect to the increased rating claim whether a staged rating, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is appropriate; and, with respect to TDIU due to postoperative Freiberg's disease of the right 2nd toe, whether the procedures of 38 C.F.R. § 4.16(b) pertaining to extra-schedular TDIUs are invoked (as appropriate). 8. If any benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).