Citation Nr: 20029862 Decision Date: 04/28/20 Archive Date: 04/28/20 DOCKET NO. 17-10 946A DATE: April 28, 2020 REMANDED The claim for an initial compensable rating for bilateral hammer toes is remanded. The claim for an initial compensable rating for right foot hallux valgus prior to November 20, 2019 and a rating in excess of 10 percent thereafter is remanded. The claim for a rating in excess of 20 percent for left lower extremity shin area varicosities is remanded. The claim for a rating in excess of 20 percent for left lower extremity peripheral neuropathy (previously left ankle disability) is remanded. The claim for a rating in excess of 20 percent for right lower extremity peripheral neuropathy prior to March 25, 2015 and a rating in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to November 1989. The Department of Veterans Affairs (VA) is grateful for his service. The Board remanded the appealed claims in June 2019 for additional development. Regrettably, remand is again necessary prior to Board adjudication, as explained below. In June 2019, in addition to the claims addressed herein, the Board also remanded the claim of entitlement to service connection for an acquired psychiatric disability. During the pendency of the appeal, in a January 2020 rating decision, the agency of original jurisdiction (AOJ), granted service connection for a mood disorder with depressive features and assigned an evaluation of 30 percent effective November 26, 2013. As this represents a full grant of the benefit sought and the Veteran has not disagreed with the disability rating or effective date, the claim is no longer before the Board. The Veteran was afforded a VA examination in February 2020 to address issues of housebound status or need for regular aid and attendance of another. This examination addressed functional impairment associated with service-connected disabilities the subject of appeal, and hence a supplemental statement of the case (SSOC) must be issued following this examination prior to the Board’s adjudication of the appealed claims. 38 C.F.R. §§ 19.31, 19.37, 20.1304(c). The February 2020 examiner noted that the Veteran’s disabilities included status post hardware extraction at the talonavicular joint, right foot painful hardware failure, and other disability of the right foot. Associated disabilities also noted included lumbar strain with degenerative disc disease and intervertebral disc syndrome, and right lower extremity peripheral neuropathy. The examiner observed that the Veteran’s right lower extremity was slightly weak in plantar flexion and dorsiflexion due to right ankle fusion. The Veteran ambulated with a cane, and his gait was antalgic and slow. The aid and attendance examiner found that no activities of daily living were affected by a disability. The only restrictions the examiner identified were in balance and ambulation requiring use of a cane for balance, with antalgic gait, due to his right ankle. The examiner identified no restrictions due to other parts. The Veteran reported that he could walk approximately 15 minutes before he had to sit down due to swelling in his feet. The record does not clarify whether this reported swelling in the Veteran’s feet is associated with his hammertoes, his right hallux valgus, his varicosities of the lower extremities, his right ankle disability, or none of these. VA examinations in November 2019 addressing the service-connected disabilities on appeal do not clarify the degree to which each of these service-connected disabilities contribute to ambulatory limitations or other limitations in functioning. An addendum should be requested from the February 2020 examiner to explain the source of this foot swelling and associated ambulatory limitation, and whether it is related to the service-connected disabilities the subject of appeal, or other service-connected disabilities including pes planus. Other required development for the appealed claims is addressed below. Additionally, while the Veteran was previously assigned a total rating based on individual unemployability between November 2012 and March 2015, and has subsequently been assigned a 100 percent schedular rating, the record reflects that the Veteran has also been granted vocational rehabilitation services, with a vocational rehabilitation subsistence allowance awarded effective March 2020. The Veteran’s vocational rehabilitation records and any associated examinations are potentially relevant to the appealed disability claims and should be associated with the claims file. 1-2. The claims for higher ratings for right foot hallux valgus and bilateral hammer toes are remanded. The Board remanded these disabilities because an examination that had been scheduled in March 2015 failed to address the current status of his right foot disabilities due to the right foot being casted at the time. Upon a November 2019 VA examination addressing right hallux valgus and bilateral hammertoes, the examiner noted these conditions. At the examination, the Veteran reported throbbing pain at the right hallux valgus, with pain present upon flare-up of the condition. The Veteran reported that this impacted his functioning by causing difficulty with prolonged standing. Pain was noted to be present in the right foot but not the left. Pain with use was only present in the right foot, characterized as pain with weight-bearing. However, the examiner found that pain, weakness, fatigability, and incoordination were not present that significantly affected functional ability during flare-ups or when the feet were used repeatedly over time. The examiner noted that the Veteran used a wheelchair or cane due to problems with his right ankle. The examiner did note the Veteran’s report of having problems at times with prolonged standing or walking associated with his hallux valgus on the right and bilateral hammertoes. The frequency of such difficulties and relative contribution of hallux valgus versus hammertoes was not specified in the examination report. An addendum should be sought from the examiner to address these questions. 3. The claim for a rating in excess of 20 percent for left lower extremity shin area varicosities is remanded. In its June 2019 remand, the Board noted that the Veteran underwent back surgery in December 2012 and accordingly was unable to attend a VA examination in January 2013 to address his left shin area varicosities. The Board remanded for a new examination. Upon varicose veins examination in November 2019, the examiner found that the Veteran had asymptomatic varicose veins in both lower extremities that were both palpable and visible, with no post-phlebitic syndrome. While the examiner noted that the Veteran used both a wheelchair and a cane regularly, this was due to right ankle problems. The examiner found that the Veteran’s varicose veins did not impact his ability to work. Unfortunately, the examiner failed to address whether the Veteran had any flare-ups of his varicose veins, and if so their frequency, duration, and nature and severity during such flare-ups. This should be addressed for his left lower extremity shin area varicosities. 4.– 5. The claims for higher ratings for left lower extremity peripheral neuropathy (previously left ankle) and right lower extremity peripheral neuropathy are remanded. The Board remanded the claims because the record reflected that the Veteran had undergone a bilateral leg surgical procedure and treatments following the most recent VA examination in September 2014. A new examination was accordingly required to reflect current disabilities. Upon a VA peripheral nerves examination in November 2019, the Veteran reported having a pins and needles feeling in the right lower extremity since 1988 involving the third, fourth, and fifth toes as well as the lateral aspect of the right lower extremity. He also reported intermittent paresthesias involving numbness and tingling in the third, fourth, and fifth toes on the left. Current treatment consisted of gabapentin and lidocaine for these neuropathies. The November 2019 examiner found mild, incomplete paralysis of the external popliteal nerve, and did not find impairment of other nerves enervating the lower extremities. Strength was found to be full at 5/5 in muscles of the lower extremities, reflexes in the lower extremities were normal at 2+, and sensation to light touch was normal in the lower legs and feet bilaterally. The examiner did find moderate numbness in the right lower extremity and mild numbness in the left lower extremity. The examiner noted that the Veteran regularly used a cane and a wheelchair but found that this was due to problems with the right ankle. Regrettably, the examiner did not address the recent surgical procedures which may have affected peripheral neuropathy, which procedures were the basis for the Board’s prior remand. The examiner should do so, and to the extent feasible address retrospectively the nature and severity of peripheral neuropathy before and after such procedures. The examiner should also address whether the Veteran’s service-connected peripheral neuropathy in each lower extremity may be distinguished in its symptoms and effects on functioning from his service-connected bilateral varicose veins, right hallux valgus, bilateral hammer toes, and bilateral pes planus, or from non-service-connected disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (impairment of a part due to other causes which are distinguishable in their symptoms from those of the service-connected disability should not be attributed to the service-connected disability for purposes of assigning a disability rating). The matters are REMANDED for the following actions: 1. A copy of the Veteran’s vocational rehabilitation file including any associated examinations and evaluations should be obtained and associated with the Veteran’s electronic claims file. 2. Thereafter, based on review of the claims file and examination notes, the February 2020 aid and attendance examiner should provide an addendum explaining the source of the foot swelling and associated ambulatory limitation noted in the examination report, and addressing whether this foot swelling and ambulatory limitation is related to his service-connected disabilities inclusive of bilateral hammertoes, hallux valgus of the left or right foot, varicosities in the lower extremities including in particular varicosities of the left shin, or other service-connected disabilities including bilateral pes planus. A complete explanation should be provided for any opinions expressed. 3. Based on review of the claims file, the November 2019 VA hallux valgus and hammertoes examiner should be asked to provide an addendum addressing retrospectively the frequency of the Veteran’s difficulties with prolonged standing or walking due to his hallux valgus on the right and his bilateral hammertoes over the claim period, and the contribution of each of these disabilities to these difficulties. The examiner should provide details of any intervals of greater or lesser severity of disability. If these questions cannot be address by this examiner absent further inquiry, if feasible the examiner should contact the Veteran telephonically to assist in addressing these questions. A complete explanation should be provided for any opinions expressed. 4. Based on review of the claims file, the November 2019 VA varicosities examiner should be asked to provide an addendum addressing any flare-ups of the Veteran’s varicose veins, and if there are any, to address retrospectively their frequency, duration, nature, and severity over the claim period. If these questions cannot be address by this examiner absent further inquiry, if feasible the examiner should contact the Veteran telephonically to assist in addressing these questions. A complete explanation should be provided for any opinions expressed. 5. Based on review of the claims file, the November 2019 VA peripheral neuropathy examiner should be asked to review the claims file and provide an addendum addressing recent surgical procedures of the lower extremities, as well as any of the low back, which may have affected peripheral neuropathy. The examiner should, to the extent feasible, address retrospectively the nature and severity of peripheral neuropathy in each lower extremity before and after such procedures, including providing details of any intervals of greater or lesser severity of disability. In so doing, the examiner should distinguish any symptoms and effects on functioning from the Veteran’s service-connected bilateral varicose veins, bilateral hallux valgus, bilateral hammer toes, bilateral pes planus, or any non-service-connected disabilities. For any non-service-connected disabilities for which symptoms and effects on functioning are not distinguishable from those of the Veteran’s peripheral neuropathy, those symptoms and effects on functioning should be addressed as part of the symptoms and effects on functioning of the peripheral neuropathy. If these questions cannot be addressed by this examiner absent further inquiry, if feasible the examiner should contact the Veteran telephonically to assist in addressing these questions. A complete explanation should be provided for any opinions expressed. 6. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.