Citation Nr: 1751620 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-07 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial compensable rating for right foot hammer toe with calluses. 2. Entitlement to an initial compensable rating for left foot hammer toe with calluses. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Rasool, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in July 2017. A transcript of that hearing is of record. The Board notes that the January 2014 Statement of Case (SOC) denied entitlement to individual unemployability (IU), and the Veteran's March 2014 VA Form 9 limited his appeal to the issues of entitlement to compensable ratings for right and left foot hammer toe disabilities. However, the Board will take jurisdiction of entitlement to a TDIU, per Rice v. Shinseki, 22 Vet. App. 447 (2009), as the Veteran has identified his service-connected foot disabilities as interfering with his employability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Veteran appeals the denial of compensable right and left foot hammer toe disabilities. In relation to his claims, the Veteran was last examined in January 2014. Since the last VA examination the Board notes that the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. As such, a new VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected right and left hammer toe disabilities. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing situations. Accordingly, the claims are remanded. As it pertains to TDIU, at the hearing, the Veteran testified that he stopped seeking employment due to his service-connected foot disabilities. The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claim on appeal. As such, this issue must be deferred pending additional development and adjudication. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA outpatient treatment records since January 2014. 2. Schedule the Veteran for VA examination to ascertain the current severity and manifestations of his service-connected right and left foot disabilities. Access to VBMS must be made available to the examiner for review. In accordance with the latest worksheets for rating the feet, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his disabilities. Please specifically identify all foot abnormalities and diagnoses that are due to, or a part of, the Veteran's service-connected right and left foot hammer toe disabilities or which are otherwise related to his service. After all foot diagnoses that are attributable to service and/or the service-connected hammertoes are identified and clearly set forth in the report, opine whether the overall service-connected foot disability is moderate, moderately severe or severe. Also, discuss the functional impairments attributable to the service-connected foot disabilities in terms of sedentary and physical occupational employment, such as ability to sit, walk, stand, bend, pull, etc. In order to comply with the Court's decision in Correia, the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. Also, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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. §§ 5109B, 7112 (West 2014). _________________________________________________ T. MAINELLI 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).