Citation Nr: 1803310 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-14 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for hallux rigidus with traumatic arthritis of the left great toe (except for a period when a temporary total rating was in effect). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Elwood, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied a rating in excess of 10 percent for hallux rigidus with traumatic arthritis of the left great toe. In February 2014, the RO granted a temporary total (100 percent) rating for hallux rigidus with traumatic arthritis of the left great toe due to surgical or other treatment requiring convalescence, from May 31, 2013 through August 31, 2013. A 10 percent rating was resumed from September 1, 2013. As the Veteran was granted a total rating from May 31, 2013 through August 31, 2013, the rating for hallux rigidus with traumatic arthritis of the left great toe during this period will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). As a final preliminary matter, the Board points out that the RO denied service connection for bilateral metatarsalgia by way of a December 2014 rating decision. The Veteran submitted a timely notice of disagreement with the December 2014 decision and a statement of the case was issued in March 2017. The Veteran submitted a substantive appeal (VA Form 9) later in March 2017, but the metatarsalgia issue has not yet been certified to the Board for appellate review. Hence, the issue of entitlement to service connection for bilateral metatarsalgia is not currently before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The evidence reflects that the Veteran's hallux rigidus with traumatic arthritis of the left great toe may have worsened since his most recent VA examination in February 2015. For instance, his representative reported in a March 2017 Appellate's Brief that the disability had "become worse since the [February 2015] examination, and that a current VA examination is warranted to determine the current level of severity of the disability." In light of this evidence of potential worsening of the Veteran's left foot disability since the February 2015 examination and as his increased rating claim must otherwise be remanded, as explained below, the Board will grant the request of the Veteran's representative to remand the appeal for a new VA examination to assess the severity of the service-connected left foot disability. Moreover, as explained in the introduction section above, the Veteran has perfected an appeal as to the issue of entitlement to service connection for bilateral metatarsalgia, but this issue has not yet been certified to the Board. With respect to this issue, the Veteran requested in a March 2017 statement (VA Form 21-4138) that he be afforded "a hearing at the local office" before sending his case to the Board. In addition, he requested a Board hearing before a Veterans Law Judge by way of videoconference on his March 2017 substantive appeal (VA Form 9). Information contained in the Veterans Appeals Control and Locator System (VACOLS) appears to indicate that the AOJ is in the process of scheduling the Veteran's requested hearing at the RO. The Board points out that any decision with respect to the claim of service connection for bilateral metatarsalgia may affect the claim for an increased rating for the service-connected hallux rigidus with traumatic arthritis of the left great toe. Hence, the increased rating claim is inextricably intertwined with the service connection claim on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, it follows that any Board action on the increased rating claim, at this juncture, would be premature, and a remand of the increased rating claim is warranted at this time. The AOJ should not readjudicate the Veteran's increased rating claim until all development pertaining to the claim of service connection for bilateral metatarsalgia has been completed (to include any pending hearing requests) such that the increased rating and service connection claims can be properly adjudicated together. Finally, updated VA treatment records should be secured upon remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for a foot disability, to include the dates of any such treatment. Ask the Veteran to complete authorizations for VA to obtain all records of his treatment for a foot disability from any sufficiently identified private treatment provider from whom records have not already been obtained. The AOJ shall attempt to obtain any relevant private treatment records for which a sufficient release is received. All efforts to obtain these records must be documented in the file. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e) (2017). 2. Obtain and associate with the file all updated records of the Veteran's treatment contained in the Columbia Vista electronic records system dated since December 2016; and all such relevant records from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159 (e). 3. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected left foot disability. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand along with any records obtained pursuant to this remand, must be sent to the examiner for review. All symptoms relative to the Veteran's left foot disability should be set forth in detail. The examiner should also equate the level of impairment caused by all symptoms associated with the service-connected left foot disability to "moderate," "moderately severe," or "severe" disability of the foot. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his left foot disability. 4. After conducting any additional indicated development (to include completing any necessary development pertaining to the claim of service connection for bilateral metatarsalgia such that the service connection claim and the claim for an increased rating for hallux rigidus with traumatic arthritis of the left great toe can appropriately be adjudicated together), readjudicate the issue of entitlement to an increased rating for hallux rigidus with traumatic arthritis of the left great toe. If a full benefit sought on appeal remains denied, the AOJ should issue an appropriate supplemental statement of the case. After the Veteran is given an opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 (2012). _________________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).