Citation Nr: 21063108 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 05-17 019 DATE: October 13, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for residuals of right second toe injury is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction) AOJ). In January 2015, the Veteran testified at a Board of Veterans' Appeals (Board) hearing before the undersigned. In a January 2016 decision, the Board granted entitlement to a 10 percent rating for right second toe disability. The Veteran appealed the Board's January 2016 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court in a September 2016 Order, vacated the Board's January 2016 decision and remanded the matter to the Board. In September 2018, the Board denied an initial rating in excess of 10 percent for residuals of right second toe injury. The Veteran again appealed to the Court. Pursuant to an April 2021 JMR, the case has been vacated and returned to the Board. The April 2021 JMR indicated that the Board did not adequately consider supporting evidence; specifically, a March 2018 VA examiner's opinion that a small exostosis of Veteran's toe was apparent in X-ray records, as well as the Veteran's testimony. The Veteran has also argued that the March 2018 examination was inadequate. At this juncture, the Board finds that a current VA examination with additional evaluation as to matters indicated below is warranted. At his January 2015 Board hearing, the Veteran testified that that he had a deformity of the right second toe and ankylosis of the distal joint. The Veteran testified that his initial injury was caused by an ammunition round falling on the Veteran's foot (not exploding, just falling from hands-height), necessitating an evacuation by aircraft, the removal of his toenail, and stitches. He stated that he cannot move his toe at all. In addition, Dr. C.B. and the Veteran testified that his toe was numb to the touch yet hurt constantly, was deformed, and was twice the size of the adjacent toes. The Veteran indicated that his injured toe physically crosses underneath the great toe, adding to its deformity. Of record are reports from Dr. C.B. from 2008 and 2015 which list the Veteran's symptoms as including near fusion of joints in the toe, the excessive size of the toe, continuous pain of the toe, and toenail deformity. In March 2018, a VA examiner indicated that the Veteran had basically pain on palpation; however, the Veteran argues that his symptoms are more severe than that description. Further, the Veteran and his representative argue that while the examiner indicated that his level of severity does not warrant amputation as it is moderate, the examiner did not provide any explanation as to why his overall level of disability is moderate. His representative further advances that the Veteran has the functional equivalency of amputation/amputation of a minor toe with the removal of a metatarsal head. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected right second toe disability. The examiner should review the record prior to examination. The examiner should address the Veteran's claimed symptoms: (1) Pain, (2) Numbness, (3) Excessive size, (4) Toenail deformity, (5) Exostosis deformity, and (6) Toe crossing underneath the big toe. The examiner should opine as to the following: (A) Whether the overall level of disability is moderate, moderately severe, or severe, with an explanation as to why, with specific consideration of the totality of the right second toe injury residuals including the six claimed symptoms. (B) Whether the service-connected toe disability results in actual loss of use of the foot. (C) Whether the Veteran's overall level of disability is the functional equivalent of amputation of the second toe with removal of the metatarsal head. The examiner should also obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran directly. The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). (Continued on the next page) Any opinions expressed by the examiner must be accompanied by a complete rationale. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly, 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.