Citation Nr: 21004080 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 09-23 463A DATE: January 25, 2021 REMANDED Entitlement to a rating in excess of 20 percent for right hallux limitus/extensus, status-post bunionectomy, with metatarsalgia and degenerative joint disease of the right first and second metatarsophalangeal joints is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1972 to October 1992. Her combined VA disability rating has been 100 percent since November 12, 2013. She has had a 100 percent rating based on individual unemployability since April 25, 2013. This matter comes to the Board of Veterans’ Appeals (Board) from an October 2007 rating decision by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran relocated during the pendency of the appeal, and jurisdiction was transferred to the VARO in Milwaukee, Wisconsin. In November 2014, the Board denied the issue on appeal. Subsequently, the Veteran appealed the Board’s denial of this issue to the United States Court of Appeal for Veterans’ Claims (the Court). In a June 2016 Memorandum Decision, the Court vacated and remanded it to the Board for further development and adjudication. The issue was denied again by the Board in March 2017, and the Veteran, again, filed an appeal to the Court. In a January 2018 Order, the Court granted a November 2017 Joint Motion for Partial Remand (JMPR), which vacated the portion of the March 2017 Board decision that denied the issue on appeal and remanded it back to the Board with guidance and instructions. In June 2018, the Board remanded the issue for additional development consistent with the terms of the JMPR. In September 2019, the Board again remanded the issue after the Veteran submitted additional relevant evidence that was not considered by the RO. Entitlement to a rating in excess of 20 percent for right hallux limitus/extensus, status-post bunionectomy, with metatarsalgia and degenerative joint disease of the right first and second metatarsophalangeal joints is remanded. In the November 2017 Court-endorsed JMPR, the parties agreed that, to properly evaluate the issue on appeal, without offending VA’s anti-pyramiding regulation, 38 C.F.R. § 4.14, the Board must consider whether separate evaluations are warranted for all of the Veteran’s right foot disabilities, service-connected or not. The record reflected that, in addition to the issue on appeal (which, itself, encompasses multiple separate right foot disabilities), service connection has been established for superficial scars of the right foot (evaluated 10 percent disabling, effective from August 19, 2004) and surgical scars of the right foot (evaluated non-compensably (zero percent) disabling, effective from November 12, 2013). Further, the record reflected the following diagnoses pertaining to the right foot for which service connection had been neither claimed nor awarded: (1) calluses, (2) pes cavus, (3) metatarsalgia, (4) plantar fasciitis, (5) calcaneal spurring, and (6) osteopenia of the distal phalanges of the right third and fourth toes. As part of its June 2018 remand, the Board referred the following issues to the Agency of Original Jurisdiction (AOJ) for development and adjudication in the first instance: (1) entitlement to an evaluation in excess of 10 percent for service-connected superficial scars of the right foot, (2) entitlement to service connection for a compensable evaluation for service-connected surgical scars of the right foot, (3) entitlement to service connection for calluses of the right foot, to include as secondary to a service-connected disability, (4) entitlement to service connection for pes cavus of the right foot, to include as secondary to a service-connected disability, (5) entitlement to service connection for metatarsalgia of the right foot, to include as secondary to a service-connected disability, (6) entitlement to service connection for plantar fasciitis of the right foot, to include as secondary to a service-connected disability, (7) entitlement to service connection for calcaneal spurring of the right foot, to include as secondary to a service-connected disability, and (8) osteopenia of the distal phalanges of the right third and fourth toes. See Bernard v. Brown, 4 Vet. App. 384 (1993); Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of an issue not yet adjudicated by the RO). The Board’s June 2018 remand noted that, in light of the parties’ agreement in the November 2017 JMPR, it would be premature for the Board to adjudicate the issue currently on appeal until all of the referred issues are developed and adjudicated, to include any appellate considerations stemming from these initial adjudications. Stated another way, the issue on appeal was found to be inextricably intertwined with the issues referred to the AOJ. See Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994). Accordingly, the Board’s June 2018 remand instructed the AOJ to fully develop and adjudicate the issues referred by the Board in that same decision; but unfortunately, with the exception of the issue of entitlement to service connection for metatarsalgia of the right foot, it failed to do so. As there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to a rating in excess of 20 percent for right hallux limitus/extensus, status-post bunionectomy, with metatarsalgia and degenerative joint disease of the right first and second metatarsophalangeal joints, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Fully develop and adjudicate the issues of: (1) entitlement to an evaluation in excess of 10 percent for service-connected superficial scars of the right foot, (2) entitlement to service connection for a compensable evaluation for service-connected surgical scars of the right foot, (3) entitlement to service connection for calluses of the right foot, to include as secondary to a service-connected disability, (4) entitlement to service connection for pes cavus of the right foot, to include as secondary to a service-connected disability, (5) entitlement to service connection for plantar fasciitis of the right foot, to include as secondary to a service-connected disability, (6) entitlement to service connection for calcaneal spurring of the right foot, to include as secondary to a service-connected disability, and (7) osteopenia of the distal phalanges of the right third and fourth toes. In undertaking adjudication of these issues, the AOJ is reminded of VA’s anti-pyramiding regulation (38 C.F.R. § 4.14) and amputation rule (38 C.F.R. § 4.68). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.