Citation Nr: 1452010 Decision Date: 11/24/14 Archive Date: 12/02/14 DOCKET NO. 10-47 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a right thumb disorder. 2. Entitlement to service connection for a left eye disorder. 3. Entitlement to service connection for a left foot disorder, to include as secondary to a service-connected disability. 4. Entitlement to an initial compensable evaluation for facial scars. 5. Entitlement to an initial compensable evaluation for muscle strain, left great toe. 6. Entitlement to an initial evaluation in excess of 10 percent for mechanical cervical strain (neck disability). REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2001 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The issues currently on appeal were previously before the Board in June 2014, at which point they were remanded for further development. They have now been returned to the Board for additional appellate review. The Board is obligated by law to ensure that the AMC/RO complies with its directives on remand; where the remand is not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). It is apparent that the necessary development was not conducted on remand. Thus, the Board is forced to remand the issues once again. The Board apologizes for the further delay in adjudication of this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the June 2014 remand the Board directed the AMC/RO to issue a Statement of the Case (SOC) for the issues of entitlement to service connection for disorders of the right thumb and left eye, as well as entitlement to increased ratings for facial scars, left great toe and cervical strain. An SOC has still not been issued. Thus, the claims must be remanded for the preparation of an SOC. After an SOC is issued the Veteran must be given an opportunity to perfect the appeal of these claims to the Board. With regard to the issue of entitlement to service connection for a left foot disorder, to include as secondary to a service-connected disability, the June 2014 remand directed the AMC/RO to schedule an additional VA examination. In the June 2014 remand the Board noted that an additional VA examination was needed to include all appropriate diagnostic testing, to include x-ray imaging, so as to determine whether a disorder of the left foot was caused or permanently aggravated beyond normal progression by a service-connected disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall furnish the Veteran and his representative with a Statement of the Case pertaining to his claims for entitlement to service connection for disorders of the right thumb and left eye, as well as entitlement to increased ratings for facial scars, left great toe, and cervical strain. The Veteran should be appropriately notified of the time limits to perfect his appeal of these issues. These issues should not be returned to the Board unless the Veteran perfects the appeals by filing a timely substantive appeal following issuance of a SOC. The Veteran's attorney should also note for the record if the issue of TDIU is being raised (in writing). If the Veteran's attorney does not raise this issue, in light of the prior review of the record the Board will assume that this issue is not being raise. 2. The RO/AMC shall schedule the Veteran for a VA examination to assess the nature and etiology of any currently-diagnosed left foot disorder. The Veteran's claims folder must be made available to the examiner for review, and the examination report should reflect that such a review was conducted. The examiner shall review both this remand and the June 2014 remand. The examiner shall specifically note a review of the Veteran's service treatment records, as well as his lay statements which indicate symptoms of a balance disorder since his period of active duty, and comment on the significance of such. All appropriate testing should be conducted, to specifically include x-ray imaging. The examiner shall provide an opinion as to the following: Whether it is at least as likely as not that any currently-diagnosed left foot disorder is (a) proximately due to or the result of any other currently service-connected disability, or (b) aggravated or permanently worsened by a service-connected disability, to include spine disabilities. If it is determined that a left foot disorder is related to a service-connected disability, to the extent that is possible, the examiner should indicate that approximately degree of disability or baseline before the onset of aggravation. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but 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 as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After undertaking any other development deemed appropriate, readjudicate the claim on appeal. If any issue remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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. 2014). _________________________________________________ JOHN J. CROWLEY 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) (2014).