Citation Nr: 1808536 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-18 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for hallux valgus of the right foot, claimed as calluses and bone spurs. 2. Entitlement to an initial rating in excess of 10 percent for hallux valgus of the left foot, claimed as calluses and bone spur, to include entitlement to a temporary total evaluation because of treatment for a service-connected condition requiring convalescence. 3. Entitlement to an initial rating in excess of 50 percent for pes planus (flat feet). 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Banks, Associate Counsel INTRODUCTION The Veteran had active duty from January 1979 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2011 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This appeal was previously before and remanded by the Board in September 2015 for additional development. It has since been returned to the Board. The issues of entitlement to service connection for a lower back condition, to include as secondary to service-connected foot conditions, and entitlement to service connection for a left hip condition, to include as secondary to service-connected foot conditions, have been raised by the record in a December 2014 Statement in Support of Claim, but they have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND In its last remand of this case in September 2015, the Board instructed the RO to consider whether to refer this case to the Director, Compensation Service for extraschedular rating, either for disabilities individually or because of the potential compounding effects between the Veteran's service-connected disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In a subsequent, October 2017 Supplemental Statement of the Case (SSOC), the RO decided that referral for extraschedular consideration of the Veteran's increased ratings claims is not warranted. See 38 C.F.R. §§ 3.321(b), 4.16(b). Nevertheless, a letter from the Veteran's private physician received in May 2014 indicates that the physician was of the opinion that the Veteran's service-connected bilateral hallux valgus and pes planus are disabling, have necessitated multiple clinic visits over the years, and are, in the physician's words, severe enough to preclude him from significant involvement in any workplace endeavor. A letter from the Veteran's employer to the Veteran, received on October 1, 2014, shows that he was terminated after he exhausted his leave at work and the employer was unable to obtain a specific return to full duty work date. The Veteran contends that he exhausted his leave because of the effects and treatment of his bilateral hallux valgus and pes planus, including the surgery and recovery. The Veteran claims that: he cannot sleep more than two or three hours at night because of his foot pain, which requires him to wake up and take pain medication throughout the night; he cannot walk or stand for longer than 20-30 minutes due to pain; he has to wear slip on shoes or tennis shoes because the side of his feet touch the insides of other shoes and cause pain; and he has had surgery twice on each foot, and the doctors tell him that the surgeries are only temporary solutions, and that, apparently, future surgeries will be necessitated, as well. According to a March 2015 VAX, the examiner noted that the Veteran previously had revision surgery to reduce pain due to nerve entrapment following surgery. Based on the aforementioned documents in the Veteran's claims file, there is evidence of sufficiently significant interference with employment to warrant extraschedular consideration for both the rating claims and the TDIU claim. While the Board regrets the additional delay, the facts of this case are such that it must be REMANDED for the following action: 1. Refer the case to the VA Director of Compensation Service or his or her delegate for extraschedular consideration of the Veteran's bilateral hallux valgus and increased ratings claims pursuant to 38 C.F.R. § 3.321(b)(1) and the TDIU claim under 38 C.F.R. § 4.16(b). All accompanying documentation must be added the claims file. 2. Following any other development deemed necessary, readjudicate the Veteran's claims. If any benefit remains denied, issue an appropriate Supplemental Statement of the Case (SSOC) and give the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on this matter. 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. C. MACKENZIE 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).