Citation Nr: 1340966 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-28 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for hammer toes of the right foot, status post arthrodesis, with degenerative changes. 2. Entitlement to a disability rating higher than 10 percent for hammer toes of the left foot, status post arthrodesis, with degenerative changes. 3. Entitlement to service connection for a left hip disorder, including secondary to the bilateral hammer toe disability. REPRESENTATION Appellant represented by: Kevin P. McCart, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to April 1985. She appealed to the Board of Veterans' Appeals (Board/BVA) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, in support of her claims, she testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board at the Board's offices in Washington, DC (Central Office (CO) hearing). The claims require further development before being decided on appeal, so the Board is remanding them to the RO. REMAND These claims must be remanded, rather than immediately decided, to ensure procedural due process requirements are met and so there is a complete record upon which to decide these claims so the Veteran is afforded every possible consideration. In regards to her increased-rating claims, she must be scheduled for a VA compensation examination to reassess the severity of her bilateral foot disability. Her previous examination was in October 2008, so more than 5 years ago, and she alleges her disability is "much worse" since. In regards to her service-connection claim, she must be scheduled for VA compensation examination for a medical nexus opinion concerning the likelihood that her left hip disorder is related to her service, either directly or secondarily by being caused or aggravated by her bilateral foot disability. Her updated VA treatment records starting from August 2011 also must be obtained and associated with the claims file for consideration. Accordingly, her claims are REMANDED for the following additional development: 1. Obtain the Veteran's updated VA treatment records, starting from August 2011 and continuing up to the present. Also ask that she identify all private treatment received for her feet or hip, and if there has been this additional evaluation or treatment outside of the VA healthcare system, then have her provide the necessary authorization (complete and return VA Form 21-4142) to also obtain these other confidential records. 2. Upon receipt of all additional records, schedule her for a VA compensation examination to reassess the severity of her bilateral foot disability (the hammertoes). The examiner is asked to perform all necessary diagnostic testing and evaluation to address the applicable rating criteria and to comment on the Veteran's functional limitations. 3. Also schedule a VA compensation examination for her left hip disorder. The examiner is asked to conduct all appropriate diagnostic tests and to provide an opinion, for each diagnosis rendered, on the likelihood (very likely, as likely as not, or unlikely) the condition diagnosed is: (1) directly related or attributable to the Veteran's military service from April 1980 to April 1985, meaning incepted during her service or is caused or aggravated by a disease, an injury or an event during her service; or (2) if involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year, so by April 1986, or (3) is secondarily related to her service, i.e., caused or aggravated by a service-connected disability - in particular, her bilateral hammer toe disability. The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or aggravation as it is to find against it. The examiner must provide explanatory rationale for all opinions or conclusions, if necessary citing to specific evidence in the file. Review of the claims file therefore is essential and should be denoted in the examination report. 4. Then readjudicate these claims in light of this and all other additional evidence. The Veteran's claim of entitlement to service connection for a left hip disorder must be considered on the premise it was caused or is being aggravated by the service-connected bilateral hammer toe disability, not just as secondary to her left foot disability. If her claims continue to be denied, send her and her representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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 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). _________________________________________________ KEITH W. ALLEN 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).