Citation Nr: 18139934
Decision Date: 10/01/18	Archive Date: 10/01/18

DOCKET NO. 16-24 953
DATE:	October 1, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for hallux valgus with bunion and callus formation, right foot, postoperative (hereinafter right foot hallux valgus), is remanded.
Entitlement to a rating in excess of 10 percent for hallux valgus with bunion and callus formation, left foot, postoperative (hereinafter left foot hallux valgus), notwithstanding the period from May 14, 2013, to June 30, 2013, during which a temporary total rating under 38 C.F.R. § 4.30 is in effect, is remanded.
INTRODUCTION
The appellant served on active duty in the Army from March 1983 to March 1986.  
This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The appellant filed a timely Notice of Disagreement (NOD), received in June 2013.  A Statement of the Case (SOC) was issued in May 2016.  A timely substantive appeal was received in May 2016.
REASONS FOR REMAND
The appellant’s right and left foot hallux valgus disabilities are rated under Diagnostic Code (DC) 5280, the rating criteria for evaluating hallux valgus.  He is in receipt of a 10 percent rating for each foot, which is the maximum schedular rating available under DC 5280.  38 C.F.R. § 4.73.  However, the RO raised the issue of entitlement to an extraschedular rating in the May 2016 SOC.
Since the issuance of the May 2016 SOC, additional VA medical records have been associated with the claims file.  These relevant records include the report of a September 2018 podiatry consult.  Such states that the appellant underwent first metatarsal phalangeal joint (MPJ) fusion surgery for the left foot in 2015 and experiences difficulty walking.  He also endorsed severe, intermittent cramping.  It was noted that the appellant may also have neuropathy of the feet.
When pertinent evidence is submitted by an appellant or representative and is received by the Board pursuant to 38 C.F.R. § 19.37(b), the claim must be remanded to the AOJ for review, unless this right is waived or the benefit may be fully allowed.  38 U.S.C. § 7105(e) provides that waiver of initial AOJ review of evidence submitted by the claimant or his representative to the AOJ or the Board is presumed in cases where, as here, the substantive appeal was filed after February 2, 2013.  See 38 U.S.C. § 7105(e); VA Fast Letter 14-02 (May 2, 2014).  The Board notes that the additional evidence was not submitted by the appellant but rather was created by VA.  In these circumstances, a remand is warranted for initial AOJ review of this evidence and, if the claims remain denied, issuance of a SSOC to the appellant and his representative.
The matters are REMANDED for the following action:
Readjudicate the issues of entitlement to (a) a rating in excess of 10 percent for hallux valgus with bunion and callus formation, right foot, postoperative, and (b) a rating in excess of 10 percent for hallux valgus with bunion and callus formation, left foot, postoperative, notwithstanding the period from May 14, 2013, to June 30, 2013, during which a temporary total rating under 38 C.F.R. § 4.30 is in effect.  Such readjudication should include consideration of whether extraschedular ratings are warranted, as such was considered in the May 2016 SOC. 
If the benefits sought on appeal remain denied, a Supplemental Statement of the Case must be provided to the appellant and his representative.  After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 

 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Behlen, Associate Counsel