Citation Nr: 1803335 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-13 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for residuals of left metatarsalgia, status post healed fractures, first distal phalanx and third and fourth proximal phalanges of the left foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran has served in the Army National Guard for nearly 30 years. He has multiple periods of active service including from January 1989 to May 1989. It appears he also was on active duty from December 2001 to April 11, 2003; from April 14, 2003 to October 2013; and from November 2013 to October 24, 2016. He was mobilized for active service, effective October 25, 2016, and the record appears to indicate this mobilization was extended until April 14, 2018. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for residuals of left metatarsalgia, status post healed fractures, first distal phalanx and third and fourth proximal phalanges of the left foot, and assigned a 0 percent rating, effective March 3, 2009. The claim for a compensable rating for the service-connected bilateral hearing loss is not before the Board at this time. In that regard, in the April 2014 substantive appeal, the Veteran indicated he was only appealing "crush injury to left foot". The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends he should be entitled to a compensable rating for his service-connected left foot disability. Service treatment records (STRs) show that in August 2002, he sustained a foot injury after a bulldozer blade dropped on his left foot, causing a fracture of the great toe and associated fractures of the 3rd and 4th proximal phalanges. A June 2009 STR from the 96th Medical Group shows that the Veteran was seen for left foot pain. The diagnoses included reflex sympathetic dystrophy lower limb foot. It was noted that this was a follow-up to the 2002 trauma, and there was increased sensitivity at the site, as well as skin changes and loss of hair growth. On a VA examination in February 2010, the Veteran reported pain at a level of 7 associated with standing, walking, and at rest, and that his ability to stand or walk was limited. Examination of the left foot revealed diffuse tenderness to palpation; normal plantar and dorsiflexion of the toes; no painful motion, edema, weakness, or instability; no evidence of abnormal weight bearing; and no discomfort with manipulation. The diagnoses included an incidental finding of reflex sympathetic dystrophy left lower extremity; and no objective finding of functional limitation. More recent STRs show that in July 2017, the Veteran was seen for bilateral foot swelling for the past two weeks. He reported pressure pain in the feet at level 8 on the pain scale; 3 gout flares in the last 4 weeks involving the MTP; and intermittent swelling of the feet which lasted a few hours and then resolved. Examination revealed mild swelling of the foot, but no erythema, tenderness, limitation of motion, or pain on motion of the toes. In September 2017 a neurological examination revealed diminished vibratory sensations and tenderness of both feet. The diagnosis included CRPS (chronic regional pain syndrome), lower extremities. On a VA DBQ (disability benefits questionnaire) examination, dated in October 2017, the history of the Veteran's foot condition included diagnoses of bilateral plantar fasciitis, arthritis of both feet, gout of both feet, and two broken toes of the left foot in 2002. He reported his left foot was very painful and also had right foot pain, making it hard to walk. He reported flare-ups of severe pain that impacted the functioning of the foot all day, and that he was unable to wear socks or shoes. The residuals of his left foot injury were assessed as mild. It was noted that he had tenderness of the 3rd and 4th digits of the left foot, and that his foot condition chronically compromised weight bearing. He also had left foot pain on movement and weight-bearing that contributed to functional loss. He wore a brace constantly. On a VA DBQ examination for muscle injuries in October 2017, it was initially noted that the Veteran had not ever been diagnosed with a muscle injury, but then there was also a notation that he did have a non-penetrating muscle injury, which symptoms had an onset in 2002, and the Veteran reported that this condition began when a dozier blade crushed his left foot and not his right foot. The Veteran reported the condition had gotten worse, and that the bottom of his foot burned all day and the top of his foot was hypersensitive. The examiner noted that for the claimed condition of complex regional pain syndrome, right lower leg, there was no diagnosis because there was no pathology to render a diagnosis. On a VA DBQ examination dated in October 2017, it was noted that the Veteran's gout symptoms had an onset in 2005 and began in his big toes. He reported extreme pain in his feet due to gout, and that this condition required continuous use of medication. He also had limitation of foot joint movement due to pain, which was attributed to his gout. It was noted that he did not have exacerbations of gout which were incapacitating, or exacerbations of gout which were not incapacitating. In a letter dated in November 2017, the RO advised the Veteran that a proposed rating decision had been issued after the service department requested a disability assessment because he had been found unfit for service. The RO also advised the Veteran that his claim for two broken toes with gout was currently under appeal and would not be addressed in connection with the proposed rating decision. The RO indicated that the new claim for gout could not be separately evaluated as it was inextricably intertwined with his service-connected left foot disability, and that he would receive separate correspondence from the appeals team regarding that issue. As noted above, the Veteran contends he should be entitled to a compensable rating for his service-connected left foot disability. Review of the record shows he last underwent a VA examination to assess the severity of his left foot in 2010, at which time there was an incidental finding of reflex sympathetic dystrophy left lower extremity. Thereafter, in his notice of disagreement submitted in April 2010, the Veteran reported he had nerve damage in the left foot which the podiatrist called RSD, that he could not walk on his tip-toes because his toes did not bend, that the skin on top of the foot was hypersensitive and discolored, that it was painful to wear boots or shoes, and that the bottom of his foot burns. In a substantive appeal submitted in April 2014, the Veteran indicated that the VA examination was not as reported, noting that he was asked to stand on his tip-toes, but could not because of pain and his toes would not move, and that he was still being treated for RSD and was told he would always have to be treated for it. The Veteran next underwent pertinent VA examinations in 2017. After reviewing the 2017 examinations, however, the Board concludes they may not provide a complete picture of the nature and severity of the Veteran's service-connected left foot disability (residuals of fractures of three toes), which the RO has recently expanded to include gout. There are discrepancies including whether he has a muscle injury and/or nerve damage in the foot, to include RSD; and as to the frequency of his gout episodes. A remand is necessary to afford the Veteran an opportunity to undergo another VA examination to clarify these discrepancies. The Board also notes that since the statement of the case (SOC) was issued in April 2014, numerous STRs have been submitted and VA examinations were conducted, none of which appear to have been considered by the RO in conjunction with the issue on appeal. Thus, on remand these records should be considered by the RO and encompassed in a supplemental statement of the case (SSOC). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected left foot disability. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must describe the nature and severity of all symptoms of his service connected residuals of fractures of left toes, to include any associated pathology, including muscle injury, nerve damage, and gout. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. In addition, the examiner must provide findings of pain and range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the left foot, related to residuals of left toe fractures and gout. 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. 2. After the above development has been completed, review the file and ensure that all development sought in this remand is completed. If the benefit sought on appeal is not granted, an SSOC should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. The case should be returned to the Board, as appropriate. 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR 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).