Citation Nr: 19123740
Decision Date: 04/02/19	Archive Date: 03/29/19

DOCKET NO. 12-21 507
DATE:	April 2, 2019

REMANDED

Entitlement to a compensable rating for residuals of a left foot injury is remanded.

REASONS FOR REMAND

The Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans’ Appeals (Board) videoconference hearing in March 2014. 

In July 2017, the Board, in pertinent part, denied entitlement to an increased rating for a left foot disability. However, pursuant to a joint motion for partial remand, the U.S. Court of Appeals for Veterans Claims vacated the Board’s decision in September 2018. The case is now returned for appellate review.

1. Entitlement to a compensable rating for residuals of a left foot injury is remanded.

The joint motion for partial remand found that the Board’s finding in July 2017 that the Veteran’s left foot disability did not warrant a separate rating for neurological impairment was inadequate, because a September 2012 Department of Veterans Affairs (VA) examination, which the Board relied on, included neurological testing on the right foot, not the left. In addition, the parties to the joint motion indicated that while a March 2015 VA examination report found no evidence of degenerative or traumatic arthritis in the left foot, evidence dated in April 2010 and June 2007 showed slight narrowing of the joint space in the first metatarsophalangeal joint consistent with mild degenerative joint disease. It was noted that a subsequent VA examination should consider this information. Finally, the parties to the joint motion noted that whether functional loss due to pain should be considered in the rating. 

For these reasons, additional examination of the left foot is warranted.

The matter is REMANDED for the following action:

1. Obtain the Veteran’s VA treatment records for the period from March 2015 to present.

2. Schedule the Veteran for an examination of the current severity of his service-connected left foot disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to left foot disability alone and discuss the effect of the Veteran’s left foot disability on any occupational functioning and activities of daily living.  

In addition to the above, the examiner should consider the following:

(a)	Whether there is any associated separate neurological impairment in the left foot

(b)	In determining whether there is presently associated arthritis in the left foot, consider June 2007 imaging studies showing slight narrowing of the joint space with marginal sclerosis involving the first metatarsophalangeal joint consistent with mild degenerative joint disease.

If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	Sarah B. Richmond