Citation Nr: 18142102 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 09-40 326 DATE: October 12, 2018 REMANDED Entitlement to an evaluation higher than 20 percent for bilateral pes cavus with hammer toe deformities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to September 1968. He was medically discharged due to a foot condition, pes cavus with hammer toes, that pre-existed service. The Veteran was granted service connection for pes cavus with hammer toe deformities in an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) based on a finding that although the disability pre-existed service, there was permanent aggravation caused by service. The RO determined based on the service treatment records that prior to service, the disability was 30 percent disabling and that the disability currently warranted a 50 percent rating, which is the highest possible schedular rating under Diagnostic Code 5278 for acquired claw foot (pes cavus). After deducting the pre-service percentage, the RO assigned a 20 percent disability rating for the in-service aggravation of the Veteran’s pes cavus. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the VA RO in October 2008 and February 2016. The October 2008 rating decision continued the 20 percent rating assigned to pes cavus; the February 2016 rating decision denied entitlement to a TDIU. The Veteran testified on the increased rating issue before a Veterans Law Judge in October 2010. A transcript is of record. The Board remanded the claim in August 2011 and subsequently denied it in a December 2013 decision. The Veteran appealed the Board’s December 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2014 Joint Motion for Remand (Joint Motion), the parties agreed that the Board’s December 2013 decision failed to adequately address the potential applicability of 38 C.F.R. § 3.350 for loss of use of the foot. In a July 2014 Order, the Court granted the Joint Motion, vacated the Board’s December 2013 decision, and remanded the case to the Board for re-adjudication. In March 2015, the Board remanded the claim for additional development. The Board issued another decision in May 2017, which, in pertinent part, denied the claim for a rating higher than 20 percent for bilateral pes cavus with hammer toe deformities and the claim for entitlement to a TDIU. The Veteran again appealed to the Court. In a Joint Motion, the parties requested that the Court vacate the May 2017 Board decision that denied entitlement to an evaluation higher than 20 percent for bilateral pes cavus with hammer toe deformities and entitlement to a TDIU. In a January 2018 Order, the Court granted the Joint Motion. The Board notes that the Veterans Law Judge who conducted the October 2010 Board hearing is no longer employed by the Board and that the Veteran declined VA’s offer to have another hearing on the matter. The Board also notes that the Veteran has waived RO consideration of additional evidence submitted to the Board in the first instance in August 2018.   1. Entitlement to an evaluation higher than 20 percent for bilateral pes cavus with hammer toe deformities is remanded. The most recent Joint Motion indicated that although the Board determined in its May 2017 decision that the Veteran was entitled to the highest possible evaluation for his service-connected bilateral pes cavus with hammer toe deformities, it failed to consider or discuss whether entitlement to special monthly compensation (SMC) was warranted. It also determined that the relevant inquiry in determining whether SMC is warranted based on loss of use under 38 C.F.R. § 3.350(a)(2)(i) is whether the Veteran’s remaining functional ability would be equally well served by amputation, such as with use of a prosthesis. The Joint Motion indicated that remand was necessary for the Board to provide adequate reasons or bases addressing the adequacy of the September 2015 examination and the examiner’s rationale that “the condition, though severe, would not be equivalent to amputation as there is deformity[,] however not so marked as to have limited the ankle ROM nor shortened the forefoot to a degree equivalent to amputation,” or to consider whether a new opinion was necessary to determine whether the Veteran’s remaining function could be accomplished equally well by an amputation stump with prosthesis. The Board initially notes that the May 2017 decision included a finding of fact that the Veteran’s bilateral pes cavus is not characterized by loss of use of either foot such that no effective function remains other than that which would be equally well served by an amputation stump below the knee with use of a suitable prosthetic appliance. It finds, however, that a new opinion is needed to address the concerns raised in the Joint Motion. While the Board acknowledges that a private opinion on this matter was submitted in August 2018, this opinion relied upon an interview of the Veteran and review of photographs of his feet. Given the complexity of this case, the Board finds a new examination with opinion should be obtained.   2. Entitlement to a TDIU due to service-connected disabilities is remanded. This issue is inextricably intertwined with the claim for an evaluation higher than 20 percent for bilateral pes cavus with hammer toe deformities. While the Board acknowledges the assertion raised by the Veteran’s attorney that it should award a TDIU on an extra-schedular basis on the first instance, it finds that the attorney’s reliance on the holding in Wages v. McDonald, 27 Vet. App. 233 (2015), is misguided. Contrary to the attorney’s suggestion, the Court in Wages explicitly stated that “the scheme created by [38 C.F.R.] § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance” and that “the Board is required to obtain the Director’s decision” before the Board may award an extra-schedular TDIU. Wages, 27 Vet. App. at 236. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a podiatrist or orthopedic foot specialist to determine the current severity of the bilateral pes cavus with hammer toe deformities. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the bilateral pes cavus with hammer toe deformities should be reported. a. The examiner is specifically asked to address the extent to which the Veteran can use his feet to stand, balance, and walk to assist in determining whether the Veteran’s symptomatology has resulted in the “loss of use” of either one or both of his feet. For this purpose, “loss of use” will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination regarding “loss of use” will be made on the basis of the actual remaining function of the foot, whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis; for example, (a) extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3-1/2 inches or more, will constitute loss of use of the foot involved; (b) complete paralysis of the external popliteal nerve (common peroneal) and consequent foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot. 38 C.F.R. §§ 3.350, 4.63. b. The examiner should consider whether the Veteran’s feet are functioning properly, to include whether there is complete foot drop, whether the Veteran can walk and whether his feet can support weight or whether there is little to no effective useful function remaining. To the extent possible, the examiner should provide an objective description of remaining function, a quantitative assessment of strength and the level of pain that affects use. c. If the Veteran has loss of use of either lower extremity or both, but because a nonservice-connected disability only, state so for the record (with explanation). d. An opinion as to whether the Veteran’s inability to walk for long periods and his need for a cane and motorized scooter are caused by a lack of effective functioning of one or both feet would be helpful to the Board. e. If possible, the examiner should identify all periods of time since May 2007 (the beginning of the period of consideration) when the Veteran’s service-connected disability resulted in impairment such that he would have been equally well served by an amputation stump and suitable prosthetic. A rationale must be provided for any opinion offered. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel