Citation Nr: 1806073	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-30 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial compensable rating for hallux valgus, with hallux limitus and hallux rigidus, of the right foot (claimed as bone spur of the right foot and big toe).


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. D. Logan, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 2003 to April 2004 and June 2004 to December 2012.  His service medals and decorations include the Combat Action Badge.
  
This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2013 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In the March 2013 rating decision, the Veteran was, in pertinent part, granted service connection for hallux valgus, with hallux limitus and hallux rigidus, of the right foot, with an initial noncompensable rating (0 percent), effective December 18, 2012.  The Veteran filed a notice of disagreement and perfected his appeal in July 2014.

During the pendency of his appeal, the Veteran's case was transferred to the RO in Jackson, Mississippi.  Thus, current jurisdiction of his claims file is with the Jackson RO.

The Veteran testified at an August 2017 videoconference Board hearing before the undersigned Veterans Law Judge, and the transcript of that hearing is associated with the claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Further development is necessary prior to analyzing the merits of the Veteran's increased rating claim for a right foot disability.

The Veteran's substantive appeal in this case was filed in July 2014 and the AOJ certified the case to the Board in November 2015.   

At the 2017 Board hearing, the Veteran submitted some additional records reflecting current treatment for his right foot disability.  In such cases, evidence submitted to the Board after the substantive appeal is subject to initial review by the Board unless the Veteran requests initial AOJ review.  See 38 U.S.C. § 7105 (e)(1) (2012) (providing that additional evidence submitted to the Board is subject to initial review by the Board); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501 (providing that this provision only applies to cases in which the substantive appeal was filed180 days after the date of the enactment of the Camp Lejeune Act, i.e., after February 2013).  During the hearing, the Veteran submitted additional evidence to the Board and the Board may review them in the first instance as the Veteran did not request initial AOJ review.  

However, on further review of the record, the Board observes that the claims file contains VA-generated evidence (VA outpatient records and a May 2017 VA foot examination report) that is relevant to the instant claim and was added to the claims file after the AOJ's last adjudication by way of a June 2014 Statement of the Case (SOC).  This VA-generated medical evidence was received rather than submitted, and therefore 38 U.S.C.A. § 7105 (e) does not apply to these records.  As there is no indication that the Veteran has specifically waived initial AOJ adjudication of the additional VA medical evidence received since the SOC, a remand is required for the AOJ to consider it in a SSOC.

Accordingly, the case is REMANDED for the following action:

1.  Readjudicate the issue of entitlement to an initial compensable rating for hallux valgus, with hallux limitus and hallux rigidus, of the right foot based on the entirety of the evidence, to include all evidence received since the last AOJ adjudication, to include a May 2017 VA foot examination report and all current VA treatment records.

2.  Then, if the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate SSOC and be afforded the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

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).



_________________________________________________
S. B. MAYS
 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).