Citation Nr: 1753986	
Decision Date: 11/27/17    Archive Date: 12/07/17

DOCKET NO.  10-09 994	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial compensable rating for hallux valgus, right foot, for the periods from July 17, 2008, to December 15, 2009, and from February 1, 2010, to January 5, 2014.

2.  Entitlement to an initial compensable rating for hallux valgus, left foot, for the periods from July 17, 2008, to December 15, 2009, and from February 1, 2010, to January 5, 2014.

3.  Entitlement to an initial increased disability rating for bilateral hallux valgus, rated 30 percent disabling from January 6, 2014. 

4.  Entitlement to a 10 percent rating for multiple noncompensable service connected disabilities under 38 U.S.C.A. § 3.324.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

S. Hurley, Associate Counsel 


INTRODUCTION

The Veteran had active military service from August 1989 to July 1993.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for hallux valgus, right foot, and assigned a noncompensable rating; hallux valgus, left foot, and assigned a noncompensable rating; and denied entitlement to a 10 percent disability rating for multiple noncompensable service connected disabilities under 38 C.F.R. § 3.324.  

The Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2013.  A copy of the transcript has been reviewed and associated with the claims file.  

In a July 2013 rating decision, the RO granted a temporary disability rating of 100 percent for hallux valgus of the right foot, effective December 16, 2009, to July 31, 2010, based on surgical treatment necessitating convalescence.  

These matters were before the Board in December 2013, at which time they were remanded for additional evidentiary development, including obtaining updated medical records and a VA examination to assess the severity of his bilateral foot disability.  

In a rating decision dated in January 2015, the RO granted a 30 percent disability rating for bilateral hallux valgus, effective September 4, 2014.  

In a decision dated in May 2016, the Board, in pertinent part, granted a 10 percent disability rating from July 17, 2008, to December 15, 2009, and from February 1, 2010, to January 5, 2014, for right and left foot hallux valgus, respectively, and continued the 30 percent disability rating for bilateral foot hallux valgus from January 6, 2014 (bilateral foot disability).   The Board remanded the issue of entitlement to a 10 percent rating due to multiple noncompensable disabilities under 38 C.F.R. § 3.324.  

The Veteran appealed the May 2016 Board decision and in February 2017 the parties agreed to a Joint Motion for Partial Remand (JMR) that vacated and remanded, in part, the Board's decision which declined to award disability ratings in excess of 10 percent for left and right foot hallux valgus, from July 17, 2008, to December 15, 2009, and from February 1, 2010, to January 5, 2014, and declined to award a disability rating in excess of 30 percent for bilateral hallux valgus from January 6, 2014.  The Court of Appeals for Veterans Claims (CAVC) granted the joint motion in a February 2017 Order.  

The issues of entitlement to initial increased ratings for a bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran is currently service connected for 11 disabilities with a combined disability rating of 80 percent.  




CONCLUSION OF LAW

A compensable disability rating under the provisions of 38 C.F.R. § 3.324 may not be assigned.  38 C.F.R. § 3.324 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

In the November 2009 rating decision, the RO adjudicated whether a 10 percent rating for multiple noncompensable disabilities was warranted because, at that time, service connection was granted for four disabilities, which were all evaluated as noncompensably disabling.  

Whenever a veteran is suffering from two or more separate permanent service connected disabilities of such character as to clearly interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating.  38 C.F.R. § 3.324.  

The provisions of 38 C.F.R. § 3.324 are predicated on the existence solely of noncompensable service connected disabilities.  As such, once a compensable rating for any service connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot.  See Butts v. Brown, 5 Vet. App. 532, 541 (1993).  

As the Veteran is currently service connected for 11 disabilities with a combined disability rating of 80 percent, he will have been in receipt of a compensable rating throughout the pendency of the appeal.  Thus, the issue of entitlement to a 10 percent rating for multiple noncompensable disabilities is denied as the criteria can no longer be met.  Id.  


ORDER

A compensable disability rating under the provisions of 38 C.F.R. § 3.324 is denied.  
REMAND

Bilateral Foot Disability

At the outset, the Board notes that following the CAVC remand, the AOJ requested and received a new VA examination report dated in September 2017, which addressed the current severity of the Veteran's service connected bilateral foot disability.  As a result, the VA examiner assessed him with bilateral flat foot, bilateral metatarsalgia, and bilateral hallux valgus, and concluded that the Veteran's diagnosis changed to metatarsalgia, bilaterally, and it is a progression of the previous diagnosis.  The examiner further indicated that the Veteran had two surgeries for bunion repair, which were both natural progressions of his old diagnosis.  

Following this September 2017 opinion, the AOJ requested an addendum opinion in November 2017, and requested the examiner to clarify the Veteran's foot diagnosis and delineate the symptoms noted on examination between the non-service connected pes planus and his bilateral hallux valgus.  In a November 2017 rating decision, the RO indicated the evaluation of bilateral pes planus, also claimed as right hallux valgus, is deferred for examination clarification.  

Accordingly, the Board finds that the issues vacated and remanded by CAVC to the Board are not ripe for adjudication given the procedural posture of this case.  

Furthermore, the Board finds that the September 2017 medical opinion raises additional questions regarding the pending claims.  By way of background, the Veteran underwent a lapidus bunionectomy with screw fixation in his right foot in December 2009.  Following this surgery, pain, swelling, and tenderness persisted, and in July 2011 a VA physician considered a second surgery, osteotomy and metatarsal and hardware removal.  In November 2011 the Veteran was assessed with sesamoiditis of his right foot and underwent a sesamoidectomy of his right foot in December 2011.  The pre-operative diagnosis was listed as right hardware removal and fifth metatarsal dorsiflexory with a prior surgical history of right foot arthrodesis in 2009.  

An opinion was provided by a VA Physician's Assistant (P.A.) in December 2011, which indicated that sesamoiditis of the right foot and subsequent sesamoid excision performed in December 2011 was not related to the Veteran's service connected hallux valgus of the right foot.  However, the September 2017 examiner indicated that the Veteran had two surgeries for bunion repair, which were both natural progressions of his old diagnosis.  Accordingly, the Board finds that an addendum opinion is warranted to determine whether the December 2011 surgery is related to his service connected diagnosis of hallux valgus and whether the diagnosis of sesamoiditis is related to his hallux valgus, including whether it is a natural progression of this diagnosis.  

Additionally, the Board notes that updated VA medical records indicate that the Veteran is currently treating with a private sector podiatrist.  On remand, the Board finds that the private treatment records should be obtained.  

Accordingly, the case is REMANDED for the following actions:

1. Obtain authorization and then associate with the claims file the Veteran's private treatment records from his private podiatrist.  All efforts to obtain records should be associated with the claims file.  

2.  After completion of #1, forward the claims file, including a copy of this remand, to the September 2017 VA examiner, and ask him to review the claims file and respond to the following questions:

(If the examiner is not available, the file should be forwarded to another appropriate individual for an opinion.  A new VA examination should be scheduled only if deemed necessary by the examiner.)

a.  Is it at least as likely as not (a 50 percent or higher probability) that the December 2011 right foot surgery is related to the Veteran's service connected hallux vargus of the right foot?

b.  Is it at least as likely as not (a 50 percent or higher probability) that the Veteran's diagnosis of sesamoiditis is a change in diagnosis of his previously diagnosed hallux vargus and/or is a progression of his previous diagnosis in his right foot?

The examiner should provide a comprehensive rationale for any opinion provided.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered.  

3.  Thereafter, readjudicate the issues on appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence.  The Veteran and his representative should be afforded the applicable time period in which to respond.  

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).


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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).



_________________________________________________
ERIC S. LEBOFF
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).









Department of Veterans Affairs