Citation Nr: 20052001
Decision Date: 08/05/20	Archive Date: 08/05/20

DOCKET NO. 13-02 133
DATE: August 5, 2020

REMANDED

Entitlement to a rating in excess of 40 percent for loss of the use of the right foot with loss of the right heel pad, fixation of the right calcaneus, pes planus and hallux valgus involving the right foot is remanded.

Entitlement to a total disability based upon individual unemployability (TDIU) prior to June 30, 2008 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1987 to April 1985.

These matters were previously before the Board and were denied in an October 2017 decision. The decision was appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2019 the Court issued a memorandum decision vacating the Board’s October 2017 rating decision and remanding both issues. In February 2020, the Board remanded the claims for additional development. 

1. Entitlement to a rating in excess of 40 percent for loss of the use of the right foot with loss of the right heel pad, fixation of the right calcaneus, pes planus and hallux valgus involving the right foot is remanded.

The Board is unable to make a fully informed decision because the Agency of Original Jurisdiction (AOJ) did not substantially comply with the February 2020 remand directives to reconsider the initial increased rating for the service-connected right foot injuries (rated as loss of right heel pad) from April 29, 1995 to June 30, 2008 in light of the newly submitted service treatment records in accord with 38 C.F.R. § 3.156(c)(1). Thus, the case must be remanded to comply with the Court’s May 2019 memorandum decision and the Board’s subsequent February 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998).

2. Entitlement TDIU prior to June 30, 2008 is remanded.

The TDIU claim is inextricably intertwined with the increased initial rating claim and adjudication of that issue will be deferred until the issues of increased initial ratings are decided.

The matters are REMANDED for the following action:

1. In light of the newly submitted service treatment records, which were not associated with the claims file prior to the issuance of the June 1995 rating decision, the AOJ should reconsider the severity of the Veteran’s disability for initial rating purposes for his service-connected right foot injuries (rated as loss of right heel pad) from April 29, 1995 to June 30, 2008. In accord with 38 C.F.R. § 3.156(c)(1). See Military Service Treatment Records submitted by the Veteran in February 2014, which document an extensive and more detailed picture of the Veteran’s in-service injury to his right lower extremity, to include treatment and recovery details.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to June 30, 2008.

 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. G. Perkins, 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.