Citation Nr: 1454572 Decision Date: 12/11/14 Archive Date: 12/17/14 DOCKET NO. 10-13 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable rating for residuals of hammertoe correction surgery of the right second, third, and fourth toes. 2. Entitlement to a compensable rating for residuals of bilateral hernia repair prior to January 3, 2012 and a rating greater than 10 percent from January 3, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran who served on active duty from August 1981 to November 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran had previously requested a hearing before the Board on her February 2010 substantive appeal form, but subsequently withdrew her hearing request in July 2012. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on her part. REMAND The Veteran claims the residuals of her in-service foot and hernia surgeries are more severe than currently rated. She specifically claims symptoms of pain and tingling. With regard to her right foot, she further notes her toes still curve despite the correction surgery. The Board notes the Veteran's disabilities were considered and rated mainly on the basis of the surgical scars caused by her in-service surgeries. The medical evidence, however, suggests the Veteran may have additional residuals stemming from her in-service surgeries, such as an abdominal mass, and increased pain and tingling in the right toes with curvature. At the outset, the Board finds a remand is necessary for the AMC/RO to consider the applicability of other diagnostic codes. The Veteran was last afforded VA examinations for these disabilities in January 2012, nearly three years ago. The examinations are ambiguous as they focus mainly on residual scars from the in-service surgeries rather than clarifying any and all residuals from the in-service surgeries. Specifically, with regard to the foot, while the Veteran complained of increased pain, tingling, and curvature of the toes, the examiner mainly focused on the size of the Veteran's surgical scars and whether the scars were painful. The foot examiner found no current evidence of hammertoes or any other foot diagnosis, but did not address or reconcile this conclusion with VA outpatient treatment records indicating right foot diagnoses, to include hammertoes, and subjective complaints of her toes curving with pain after prolonged standing. With regard to her bilateral hernia surgeries, while the Veteran complained of abdominal pain, the examiner merely focused on surgical scars and whether there was current evidence of a hernia, but did not address or reconcile whether any abdominal pain or conditions were caused by or otherwise a residual of her in-service bilateral hernia repair. To that extent, VA outpatient treatment records indicate treatment for abdominal pain with inflammation and suspicious masses. In March 2009, a biopsy suggested diverticulitis, but the diagnosis was never confirmed. Therein, the examiner noted the Veteran's history of bilateral hernia repair surgery as part of her pertinent medical history. Since that time, VA outpatient treatment records indicate additional treatment for abdominal pain, to include an ambiguous mass found in April 2012, and additional treatment for increased right foot pain in March 2012. It is entirely unclear what current symptoms or diagnoses the Veteran has related to the bilateral hernia repair surgeries and/or right foot hammertoe correction surgeries. In light of the lapse of time and additional VA treatment since the last VA examinations, new VA examinations are necessary. The RO/AMC must also take this opportunity to obtain recent VA outpatient treatment records from April 2012 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record all records of VA treatment from April 2012 to the present. 2. After requested records are obtained, to the extent available, provide the Veteran an appropriate VA examination to determine the current severity and manifestations of her service-connected right foot disability. The claims file must be made available to and reviewed by the examiner. Any testing deemed necessary, to include X-ray, magnetic resonance imaging (MRI), and/or sensory testing of the Veteran's right foot, must be performed. The examiner is specifically asked to clarify any and all musculoskeletal, neurological, or surgical scar residuals stemming from the Veteran's in-service hammertoe correction surgery to her second, third, and fourth toes to include specifically addressing her subjective complaints. Once all residuals are clarified, the examiner must describe the manifestations and severity of any and all right foot residuals found in accordance with VA rating criteria. A full rationale for all opinions must be stated and explained. 3. After requested records are obtained, to the extent available, provide the Veteran an appropriate VA examination to determine the current severity and manifestations of her service-connected residuals of bilateral hernia repair. The claims file must be made available to and reviewed by the examiner. Any testing deemed necessary must be performed. The examiner is specifically asked to clarify any and all residuals stemming from the in-service bilateral hernia repair, to include VA treatment of suspicious abdominal masses and suspected diverticulitis. To the extent an additional gastrointestinal diagnosis is rendered, the examiner is asked to clarify whether the additional diagnosis was caused by or otherwise a residual of the in-service bilateral hernia repair. Once all residuals and diagnoses are clarified, the examiner must describe the manifestations and severity of any and all residuals found stemming from her in-service bilateral hernia repair. The examiner should also comment on scar measurements with description of pain, breakdown, or deformity. A full rationale for all opinions must be stated and explained. 4. The Veteran should be advised that failure to appear for an examination as requested, and without good cause, could adversely affect his claim, to include denial. 38 C.F.R. § 3.655 (2014). 5. Thereafter, readjudicate the Veteran's claims remanded herein with consideration of all evidence of record and consideration of whether other diagnostic codes or separate disability ratings are appropriate. If any benefit sought is not granted to the fullest extent, issue a supplemental statement of the case and afford the Veteran and her representative an appropriate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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).