Citation Nr: 1329369 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-21 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable evaluation for left foot first metatarsal degenerative joint disease and hallux rigidus, status post arthroplasty of the first metatarsophalangeal (MTP) joint. 2. Entitlement to a compensable evaluation for a right ankle scar, to include restoration of a 10 percent evaluation. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran had active service from August 2002 to June 2003, and from March 2006 to September 2007. He also had an earlier period of active duty for training from May 1964 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from regional office (RO) rating decisions of May 2008, which, in pertinent part, granted service connection for left foot first metatarsal degenerative joint disease, rated noncompensably disabling; and December 2010, which reduced a 10 percent evaluation for right ankle scar to 0 percent, effective May 1, 2010. As discussed below, the first issue has been revised to more accurately reflect the current service-connected disability picture. In May 2013, the Veteran appeared at a hearing held at the RO before the undersigned (i.e., Travel Board hearing). At his hearing, the Veteran stated that he had pain and swelling in his right ankle itself, as well as in the scar, which potentially raises an issue of entitlement to an increased rating for service-connected status-post fracture of the right ankle, currently assigned a 10 percent rating. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the claim, and it is referred to the AOJ for appropriate action. As discussed below, during his hearing where he was talking about a bone spur, which was transcribed as both "hip" and "heel." (See Transcript, pp 12-13.) If he meant his "hip," the issue of service connection for the condition must be referred to the RO for appropriate action, as it is not inextricably intertwined with an issue on appeal. A claim for TDIU can be inferred as part of the original claim for a higher rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran said, on his February 2009 VA examination, that he lost his job in construction when he was deployed to Afghanistan and Iraq, and that now, because of his health, he could not work construction anymore. However, Rice held that a TDIU claim is part of the increased rating claim on appeal to the Board where the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased-rating claim. There are multiple other service-connected disabilities which are not on appeal to the Board, as well as a number of non-service-connected disabilities. Finally, the issue was not included in the arguments presented during the Veteran's Travel Board hearing, either by the Veteran or by his representative. Therefore, in the factual and legal circumstances of this case, the Board declines to take jurisdiction over a TDIU claim, and the issue is referred to the RO for appropriate action. 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 Concerning the rating for the right ankle scar, at the Veteran's hearing, his representative requested that an additional examination be obtained. He alleged that the last examination, in October 2009, was inadequate because the examiner did not consider pain or tenderness. A review of the pertinent VA examinations in November 2007 and October 2009 reveals that the November 2007 examination found the Veteran had a scar on the right lateral malleolus which was tender to palpation. The October 2009 examination revealed the two surgical scars, on the right lateral ankle and the right medial ankle, to be "nontender" to palpation. This examination concerning the scars did address tenderness, and appears to have been at least as thorough as the November 2007 examination which formed the basis for the 10 percent rating. Nevertheless, the Veteran testified that the scar was painful, and has continued to be painful. Both prior examinations were in the context of an evaluation of the right ankle disability as a whole, and the Board finds that the Veteran should be afforded a specific "Scars" examination, to determine the symptomatology associated with the scars, alone. In this regard, care must be taken to determine the symptomatology associated with the scars, as separate from the underlying ankle disability, which is rated separately, to avoid pyramiding. 38 C.F.R. § 4.14. With respect to the left foot first metatarsal degenerative joint disease, further development is needed, first, to consider the entire scope of the service-connected disability. In this regard, currently, the service- connected condition is listed by the RO as "left foot first metatarsal degenerative joint disease," based on the diagnosis provided in the November 2007 VA general medical examination. Since then, however, additional evidence concerning the condition has been developed. A podiatry consult in August 2008 resulted in an assessment of "painful hallux rigidus, left foot; degenerative changes," as well as "osteophyte, left first MTP joint." He underwent left foot surgery for "painful hallux rigidus of the left first MTP joint" in August 2008. The operative report noted degenerative changes, hypertrophic bone formation, and osteophytes. The surgery included resection of the first metatarsal head, with implantation of an arthroplasty of the first left MTP joint. All of this was within a year of the Veteran's separation from service. On a VA examination in February 2009, the Veteran was diagnosed with "great toe arthroplasty for degenerative joint disease" and "hallux rigidus." It is clear from the foregoing that the Veteran's service- connected left first MTP joint disability must be expanded to explicitly include hallux rigidus, which is a "painful flexion deformity of the great toe in which there is limitation of motion of the metatarsophalangeal (MTP) joint," (DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 811 (30th Ed. 2003), as well as the post-arthroplasty residuals. In addition, in his original claim, he claimed service connection for a left "foot" disability. The November 2007 VA examination disclosed, in addition to the findings concerning the MTP joint, Achilles tendon tenderness, tenderness to palpation along the medial arch, and lateral heel abnormal shoe wear. An outpatient treatment record dated in June 2008 noted that an X-ray of the foot in 2007 had shown evidence of calcification of the Achilles tendon. X-rays in June 2008 (within a year of his discharge from service) showed a small area of calcification at the level of the insertion of the Achilles at the calcaneus [heel]. In July 2008 he walked with an antalgic gait on the left foot. On the VA examination in February 2009 the Veteran said that his toe was still painful. On examination, he had limitation of motion in the left great toe, as well as pain on the lateral aspect of the foot that he stated occurred since he was compensating for the great toe. He avoided weight bearing of the left great toe during stance and had an abnormal gait. The examiner also noted that he had a very mild hallux valgus, as a new finding. This examination did not note any heel abnormality. At his hearing, the Veteran testified that he began experiencing pain due to problems walking caused by his service-connected left foot condition, and as a consequence, developed a bone spur. There is some confusion as to whether he was referring to his "hip" or his "heel," as the transcript refers to "hip" pain, then switches to "heel" while, to all appearances, talking about the same condition. (See Transcript, pp 12-13.) If he was talking about a heel spur, it would be consistent with the calcification noted in 2008. (If he meant his "hip," such matter must be referred to the RO for appropriate action, as it is not inextricably intertwined with a disability on appeal.) The Board finds that to the extent there are symptoms or findings concerning the left foot, such as a heel spur, or pain in another area of the foot, that are not already part of the service-connected disability picture, the issue of service connection has been raised, and is inextricably intertwined with the issue of rating the service-connected disability. In this regard, currently, his condition is rated under Diagnostic Code 5010, as a single minor joint. See 38 C.F.R. § 4.45(f). However, there is evidence indicating that the Veteran's service-connected condition may be more appropriately rated under a Diagnostic Code applicable to the foot, such as Diagnostic Code 5279 (metatarsalgia), Diagnostic Code 5281 (hallux rigidus), or Diagnostic Code 5284 (other foot injuries). Such a determination would be simplified if the entire scope of the disability were to be ascertained before assigning a rating under a specific Diagnostic Code. Given these considerations, an examination must be provided. In this regard, the Veteran's last VA compensation examination of the foot was over 4-1/2 years ago, in February 2009. Additionally, the raised claim service connection for additional left foot disability must be decided, in the first instance, before a final decision as to the issue of a compensable rating for the first metatarsophalangeal (MTP) disability. At his hearing, the Veteran testified that he has not received recent VA treatment for his conditions; therefore, treatment records will not be requested. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a VCAA notice letter as to the raised claim of service connection for other disability of the left foot, to include a heel spur and hallux valgus, on the basis of direct service connection, and as secondary to, including by aggravation, the service- connected postoperative left first MTP joint disability. 2. Schedule the Veteran for an VA "Scars" examination to determine the severity and manifestations of the two service- connected post-surgical scars of the right ankle. The claims folder must be provided to the examiner for review in connection with the examination. The examination must specifically note whether either scar is painful, in addition to all other relevant findings. Care must be taken to ensure that the findings pertain to the scars and not the underlying ankle disability, which is rated separately. Any opinion reached must be supported by an adequate rationale or explanation. 3. Schedule the Veteran for an appropriate VA examination of the Veteran's left foot, to determine the extent and severity of the service- connected left foot disability, which currently consists of left MTP joint arthritis and hallux rigidus, status post arthroplasty. The claims folder must be provided to the examiner for review in connection with the examination. The examination report must address the following: (a) Identify whether there is any other disability of the left foot, separable from the service-connected disability, such as a heel spur or hallux valgus, and, if so, whether it is at least as likely as not (50 percent or greater probability) that any such disorder is due to, the result of, or aggravated (increased in severity beyond natural progress) by service-connected left first MTP degenerative joint disease and hallux rigidus, status post arthroplasty; (b) The manifestations and severity of the service-connected left first MTP degenerative joint disease and hallux rigidus, status post arthroplasty. If the examiner has found that other foot disability, including hallux valgus and/or heel spur, was of service onset, or caused or aggravated by the already service- connected disability, current findings concerning any such disability should be included as well. In addition to range of motion studies, the examiner should also comment on any functional impairment resulting from painful motion, weakness, fatigability, repetitive motions, and/or incoordination. Additionally, appropriate consideration must be given to the Veteran's own lay history of symptomatology. All indicated tests should be conducted, and the results reviewed, prior to the examiner's final report. All conclusions and opinions must be supported by an adequate rationale or explanation. 4. After assuring compliance with the above development, as well as with any other notice and development action required by law, the RO should first review the raised claim for service connection for a left foot disorder, other than the service-connected left MTP degenerative joint disease and hallux rigidus, status post arthroplasty, on both a direct basis and as secondary to the service-connected disability, in the first instance. At a minimum, this must include heel spur and hallux valgus. The Veteran and his representative should be furnished with appropriate notice of the decision, and informed of the Veteran's appellate rights. If the claim is denied, the issue should only be forwarded to the Board if an appeal is properly initiated and perfected. 5. Then, the RO should review the claims already on appeal, i.e., for an initial compensable evaluation for left MTP degenerative joint disease and hallux rigidus, status post arthroplasty, in light of all evidence of record. If applicable, any other left foot disability found to be service-connected should be included as well. Concerning the right ankle scar, care must be taken to determine the symptomatology associated with the scars, as separate from the underlying ankle disability, which is rated separately, to avoid pyramiding. If the decision is less than a full grant of the benefits sought, the Veteran and his attorney should be provided with a supplemental statement of the case, and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ 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 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).