Citation Nr: 18140042
Decision Date: 10/02/18	Archive Date: 10/02/18

DOCKET NO. 10-27 260
DATE:	October 2, 2018
REMANDED
1. Entitlement to a rating in excess of 30 percent for bilateral hammer toes, to include on an extraschedular basis, is remanded.
2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected bilateral hammertoes, to include on an extraschedular basis, is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Navy from November 1967 to November 1968.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board remanded the appeal for further development in January 2014.
In a September 2016 decision, the Board denied a schedular rating in excess of 30 percent for his bilateral hammer toes and declined to refer the claim for extraschedular consideration, and remanded his TDIU claim for further development, to include a referral to the Director of VA Compensation Service for extraschedular consideration.
The Veteran timely appealed the September 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a February 2018 Memorandum Decision, the Court vacated and remanded the Board’s denial of increased rating claim for the Veteran’s bilateral hammertoes, to include on an extraschedular basis.  
1. Entitlement to a rating in excess of 30 percent for bilateral hammer toes, to include on an extraschedular basis, is remanded.
2. Entitlement to a TDIU due to service-connected bilateral hammertoes, to include on an extraschedular basis, is remanded.
In the September 2016 Board decision, the Board indicated that the record suggested the Veteran was unable to work due to his service-connected bilateral hammer toes, thus a TDIU claim on an extraschedular basis was reasonably raised by the record.  In the same decision, the Board remanded the TDIU claim for further development to include: directing the Veteran to complete a VA Form 21-8940, securing any outstanding VA and private treatment records regarding his bilateral hammertoes, and referring the claim to the Director of VA Compensation Service for extraschedular consideration.  
The Court determined that the Board’s September 2016 decision declining to refer the increased rating claim for extraschedular consideration was premature, given the development requested on the TDIU claim in the remand portion of the decision.  In a September 2018 Supplemental Statement of the Case, the RO denied the Veteran’s TDIU claim, noting that the Veteran failed to complete a VA Form 21-8940 and thus the RO did not refer the claim for extraschedular consideration.  However, the Veteran subsequently submitted the required documentation to allow for such referral.  Thus, this matter must again be remanded, and action on the Veteran’s increased rating claim for his bilateral hammertoes is deferred pending this development on his inextricably intertwined TDIU claim.  Any outstanding treatment records should also be secured.
 
The matter is REMANDED for the following action:
1. Obtain any outstanding VA treatment records.
2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.
3. Then, after completing the above development and any other development deemed appropriate, refer the issue to the Director of Compensation Service, for a determination in the first instance as to whether the assignment of a TDIU is warranted on an extraschedular basis.
 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Asante, Associate Counsel