Citation Nr: 20007663
Decision Date: 01/29/20	Archive Date: 01/29/20

DOCKET NO. 18-53 535
DATE: January 29, 2020

REMANDED

Entitlement to service connection for right toe injury secondary to service-connected right foot injury is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 2005 to March 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This matter was before the Board in August 2019, when it was remanded for additional development.

A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). The August 2019 Board remand directed the agency of original jurisdiction (AOJ) to obtain a medical examination for the foregoing issue. 

The Veteran was a no show to the VA examination; however, no notification letter or appointment letter is associated with the claims file. In order to provide the most compassionate review of the record, the Veteran should be afforded a new examination. While further delay is regrettable, a new examination is necessary for the Board to make a fully informed decision on the Veteran’s claim. However, the Veteran is warned that failure to report for a VA examination will result in her claim being evaluated based on the record and/or denied. See 38 C.F.R. § 3.655.

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination to determine the nature and etiology of her right toe injury. A copy of the exam scheduling letter must be placed in the claims file. The examiner must review the claims file. The Veteran should be requested to provide a detailed history as to her right toe injury. The VA examiner should specifically address the following: 

(a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right toe injury was caused or aggravated (increased in severity beyond normal progression) by service-connected residuals right foot injury. 

(b) If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as she should be asked to provide a detailed history of her condition. 

A complete rationale is needed for any opinion expressed. All pertinent lay and medical evidence must be discussed in the rationale, including the Veteran’s lay statements and theory of entitlement to service 

 

connection discussed in the January 2016 claim and May 2006 and November 2016 VA examinations.

 

 

M. H. HAWLEY

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Norwood, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.