Citation Nr: 1820439 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 16-60 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to an initial rating in excess of 10 percent for a left ankle disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active duty service in the United States Air Force from January 1953 to January 1957. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2015 and September 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). With regards to the Veteran's claim for service connection a left foot disorder, he contends that he injured his left foot while working on active duty in the U.S. Air Force or, in the alternative, that his disability is secondary to his service-connected left ankle and right foot disabilities. Therefore, he has claimed service connection for a left foot disorder as related to his military service, or as secondary to his service-connected left ankle and right foot disability. The Veteran was afforded a VA examination in October 2016, at which time hammer toes and acquired pes cavus were noted as diagnosed in 2002. It was also noted that the Veteran had arthritis of the left foot. Following an interview with the Veteran, a review of the record, and a physical examination, the examiner opined that the Veteran's left foot disorder was less likely than not related to his service-connected disabilities. In support of such opinion, she explained that her review of medical literature did not show that pes cavus or hammer toes were related to injuries of the ankle or opposite foot. She continued that, the most common causes of pes cavus are congenital or from a neurologic disorder. Moreover, hammer toes are more commonly caused by injury to the actual toes or wearing certain shoes. Therefore, she concluded that it was at least less likely than not that the left foot disorder was related to his service-connected left ankle injury or right foot disabilities. In a December 2016 VA opinion, the examiner further opined that the Veteran's left foot disorder was less likely than not aggravated beyond its natural progression by his service-connected disabilities. As rationale, she noted that his service-connected left ankle and right foot disabilities were diagnosed in the 1950s while his left foot disorder was diagnosed 50 years later. She continued that, the risk of hammer toes increases as people age and pes cavus deformities are mostly congenital or from a neurologic disorder. However, the Board finds that a remand is necessary to decide the claim as the October and December 2016 VA examiner did not address the Veteran's claim on a direct basis. With regard to the Veteran's left ankle disability, the Veteran, through his representative, indicated that his left ankle disability may have worsened since his last VA examination. See March 2018 Appellate Brief. Therefore, a remand is necessary to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. Additionally, throughout the course of the appeal, the Veteran was afforded VA examinations in July 2015, June 2016, and February 2017 in order to ascertain the nature and severity of his left ankle disability. However, the United States Court of Appeals for Veterans Claims (Court) issued two precedential cases that address the adequacy of VA examinations conducted for the purpose of evaluating musculoskeletal disabilities. Specifically, the Court held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Upon a review of the examinations conducted during the pendency of the Veteran's claim in July 2015 and June 2016, it does not appear that Correia-compliant testing was conducted, or that the VA examiner explained why such testing could not be conducted or was not necessary. Thus, a remand is necessary in order to afford the Veteran a new VA examination that addresses such inquiries and includes a retrospective opinion as to the findings noted at the July 2015 and June 2016 examinations. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Afford the Veteran a VA examination to determine the current nature and severity of his service-connected left ankle disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's left ankle disability. (B) The examiner should record the range of motion of the left ankle observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's left ankle disability conducted in July 2015 and June 2016. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. 2. Return the record to the VA examiner who conducted the October 2016 foot examination. The record and a copy of this Remand must be made available to the examiner. If the October 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the opinion. Following a review of the record, the examiner is requested to address the below inquiries: (A) Is it at least as likely as not (at least a 50 percent probability or greater) that any diagnosed left foot disorder, to include arthritis, is related to his military service? (B) Is it at least as likely as not (at least a 50 percent probability or greater) that the Veteran's arthritis of the left foot is caused by his service-connected left ankle or right foot disability? (C) Is it at least as likely as not (at least a 50 percent probability or greater) that the Veteran's arthritis of the left foot was aggravated (permanently worsened beyond its natural progression) by his service-connected left ankle or right foot disability? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A complete rationale for all opinions expressed must be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 (West 2014). _________________________________________________ Evan M. Deichert Acting 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).