Citation Nr: 1751550 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 12-13 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for residuals of a cold injury to the right foot. 2. Entitlement to an initial rating in excess of 20 percent for residuals of a cold injury to the left foot. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from November 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection and awarded a 20 percent initial disability rating for cold injury residuals of each foot, effective July 15, 2011. In February 2013, the Board remanded this case for additional development. In July 2013, the Board denied the Veteran's claims. He appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2014, the Court granted the parties' Joint Motion for Remand (JMR 2014), vacated the Board's July 2013 denial, and remanded the matter to the Board for development consistent with JMR 2014. In October 2014, the Board remanded this case to the AOJ for development consistent with JMR 2014. Upon completion of that development, the Board again denied the Veteran's appeals in November 2015. The Veteran appealed the denial to the Court, and in July 2016, the Court granted another Joint Motion for Remand (JMR 2016), vacated the Board's November 2015 denial, and remanded the matter to the Board for development consistent with JMR 2016. In November 2016, the Board remanded for additional development consistent with the terms of JMR 2016. The record reflects substantial compliance with those remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (citing Stegall v. West, 11 Vet. App. 268, 271 (1998) (conferring upon an appellant the right to substantial compliance with the Board's order)). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the agency of original jurisdiction (AOJ). The Veteran will be advised if he needs to take further action. REMAND A basis for the JMRs was the need for the Board to consider whether hammertoes were related to the cold weather injuries. In the most recent remand, the Board sought a medical opinion on this question. The examiner was instructed to provide a detailed rationale for the opinion. In January 2017, a VA examiner opined that it was less likely than not that the hammertoes were related to the cold injuries; but provided no reasons for this opinion. Service connection was subsequently granted for hammertoes as directly due to tight fitting boots and noncompensable ratings were assigned for each foot. The question of whether the hammertoes are related to the cold injury remains relevant; however, because they could serve as a basis for a higher rating if rated as part of the cold injury residuals. The applicable Diagnostic Code provides for a 30 percent rating if there are two or more factors (e.g., tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, and x-ray abnormalities), in addition to arthralgia or other pain, numbness, or cold sensitivity, to warrant a 30 percent rating. 38 C.F.R. § 4.104, DC 7122. There is no other evidence, including medical and lay evidence, indicating that the Veteran's disability picture more closely approximates a 30 percent rating. The Board must, therefore, remand this appeal for compliance with the earlier remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the appeal is REMANED for the following actions: 1. Ask the medical professional to provide reasons for the January 2017 opinion that hammertoes were less likely than not a residual of the service connected cold injuries in the lower extremities. If the examiner is not available ask another medical professional to provide an opinion with reasons as to whether hammertoes are a residual of the cold injuries to the lower extremities. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. 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 2014). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).