Citation Nr: 1330579 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-20 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hammer toes. 2. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder. 3. Entitlement to a temporary total rating for convalescence due to surgery for hammer toes. 4. Entitlement to a total rating rating for compensation due to individual unemployability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran, who is the Appellant, served on active duty for training from July 2002 to January 2003 and on active duty from January 2003 to July 2003. The issues or claims are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2010, in June 2010, and in May 2012 of a Department of Veterans Affairs (VA) Regional Office (RO) or Agency of Original Jurisdiction (AOJ). In January 2013, the Veteran withdrew his request for a hearing before the Board. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND On the claim for a total rating for compensation due to individual unemployability, the Board is deferring a decision on the claim until the claim of service of connection for bilateral hammer toes and the claim for increase for posttraumatic stress disorder are finally adjudicated. On the claim of service connection for bilateral hammer toes, the evidence is insufficient to decide the applicable theories of service connection raised by the Veteran and further development under the duty to assist is needed. On the claim for increase for posttraumatic stress disorder, there is conflicting VA and private medical reports as to the severity of posttraumatic stress disorder and the record is inadequate to reconcile the various reports and further development under the duty to assist is needed. On the claim for a temporary total rating for convalescence due to surgery for hammer toes, additional VA records have been identified, but not requested, and further development under the duty to assist is needed. Accordingly, the appeal is REMANDED for the following action: 1. Request records from the Tampa VAMC, pertaining to foot surgeries in January 2010. If the records do not exist or further efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination by a VA examiner, who has not previously examined the Veteran, to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that bilateral hammer toes are due to the wearing of tight military boots over the period from June 2002 to July 2003? In formulating the opinion, the VA examiner is asked to consider that except for pre-existing flat feet, the service treatment records contain no complaint or finding of hammertoes. After service the Veteran was seen in a VA podiatry consultation in December 2009 for bilateral foot pain, the Veteran stated that the second toes of each foot curled with the wearing of tight boots in service. The Veteran had surgery on his feet in January 2010. The Veteran's file must be made available to the examiner for review. 3. Afford the Veteran a VA examination to determine the current level of occupational and social impairment due to posttraumatic stress disorder, including whether the Veteran is unable to secure or to follow a substantially gainful occupation. 4. After the above development, adjudicate the claim of service connection for bilateral hammer toes and the claim for increase for posttraumatic stress disorder. If the additional evidence pertains to the claim for a temporary total rating due to convalescence for surgery for bilateral hammer toes or to the claim for a total disability rating for compensation based on individual unemployabilty, including on an extraschedular basis, adjudicate the claims. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ George E. Guido Jr. 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).