Citation Nr: 21063876 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-28 437 DATE: October 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for chronic gastritis is remanded. Entitlement to increased ratings in excess of 10 percent for arthrodesis, MP, left great toe, with early arthritic changes is remanded. Entitlement to a compensable rating for residual scars of the left foot is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1975 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the Veteran's claims were before the Board previously on October 20, 2015; July 22, 2019; and June 10, 2020. The claims listed on the title page were remanded for further development most recently in June 2020: in short, gastritis was remanded for an adequate examination pursuant to remand directives from 2019, see Stegall v. West, 11 Vet. App. 268, 271 (1998), the left great toe and scarring disorders were remanded in light of credible evidence of worsening, see Snuffer v. Gober, 10 Vet. App. 400 (1997), and the claim for a TDIU was remanded so that a VA Form 21-8940 could be sent to the Veteran for completion and submission. See BVA Remand (June 10, 2020). The Board additionally notes that while the Veteran does not currently satisfy schedular criteria for a TDIU, it is possible that he may upon a future grant of an increased rating claim on appeal. See 38 C.F.R. § 4.16. As such, while the TDIU was remanded specifically so that the Veteran could receive a VA Form 21-8940 to complete and return, the Board could alternatively infer a claim for a TDIU from the claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board further notes in passing that in October 2015, the Board denied the Veteran's claim for service connection for diabetes, due to a lack of a then current disability. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). The Board concludes that this claim is final; however, the Veteran is free to file a new claim for service connection, and the claim may be reopened if new and relevant evidence is received. After the June 2020 remand, the Veteran submitted to updated examinations in September 2020, and he was issued a Supplemental Statement of the Case (SSOC) on April 22, 2021. The Board accordingly reasserts jurisdiction. By virtue of having his claims remanded, the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall, supra; meanwhile, as examinations were ordered to contemporaneously evaluate certain disorders that may had worsened throughout the appellate period, see Snuffer, supra, these examinations must be adequate, see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In short, and for various reasons to be explained in relevant parts below, respectively, the Board ultimately concludes that the Veteran has not been afforded substantial compliance with the remand directives, see Stegall, supra. As a result, a remand is required. 1. Entitlement to a rating in excess of 10 percent for chronic gastritis is remanded. By way of background, the Veteran's claim for an increased rating for chronic gastritis was remanded in June 2020 so that substantial compliance with July 2019 remand directives could be afforded to the Veteran. The Board now concludes that the September 2020 updated examination is not adequate to rate the Veteran's claim. Even though the Veteran's chronic gastritis is rated under the diagnostic code for hypertrophic gastritis, see 38 C.F.R. § 4.114, Diagnostic Code 7307; Rating Decision (Codesheet) (Feb. 10, 2020) (confirming service connection since September 1, 1997), the examiner only stated that chronic gastritis was diagnosed on September 17, 2020, and that it is not hypertrophic. See VA Exam ( Sept. 17, 2020 ), at Questions Nos. 1b and 5. As to the chronic gastritis that the examiner did recognize, it manifests in non-severe episodes occurring at least four times annually generally lasting less than one day per episode, and at least monthly periodic abdominal pain relieved by standard ulcer therapy. See id. at Question No. 3. The Board cannot reconcile the inconsistent examination findings that despite undergoing standard ulcer therapy, there is no rating in excess of 10 percent for symptoms with at least small, ulcerated areas. The Board ultimately notes that in the SSOC issued to the Veteran, see SSOC (April 22, 2021), the Veteran's claim for an increased rating for gastritis (which, as indicated above, has been rated under Diagnostic Code 7307) appears to have been denied under Diagnostic Code 7305 instead, see id. at Pages 2-3 ("A higher evaluation of 20 percent is not warranted for duodenal ulcer unless the evidence shows moderate symptoms demonstrated by recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. [38 C.F.R. §§ 4.110, 4.114]"). The Board concludes that a remand is required to reconcile inconsistent findings within the September 2020 examination, and additionally to fully delineate why Diagnostic Code 7307 may no longer apply. In other words, even if the Veteran is entitled to a rating in excess of 10 percent for his gastritis, an adequate examination with adequate findings and an adequate opinion is required to determine under which diagnostic code applies to the Veteran to afford him the most advantageous rating in adjudicating this claim. The Board concludes that the Veteran has not been afforded substantial compliance with all previous remand directives, see Stegall, supra; therefore, the Board is precluding from adjudicating the matter, and it is thus remanded. 2. Entitlement to increased ratings in excess of 10 percent for arthrodesis, MP, left great toe, with early arthritic changes is remanded. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board can, and the AOJ should, consider the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board should ultimately evaluate the Veteran's toe disability under the diagnostic code that will provide the most favorable rating, mindful not to pyramid and overly compensate him for the same symptom. See, e.g., Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran was most recently examined in September 2020. See VA Exam (Sept. 17, 2020). This examination appears to predate the receipt of some pertinent medical records. See VA Medical Records (rec'd Jan. 25, 2021); Medical Treatment Records Government Facility (rec'd Feb. 8, 2021). Notwithstanding these records that may have been unavailable to the most recent examiner, the evidence at least confirms that the Veteran underwent an amputation of the left great toe on January 31, 2020. See VA Exam (Sept. 17, 2020), at Questions Nos. 1C and 2A. The Board concludes that the examination is inadequate in that it does not address any progression of symptoms prior to amputationjust that "He denies symptoms associated with the claimed left great toe arthrodesis condition." See id. at Question No. 2A. Post-amputation, the Board notes that if the amputation did not have metatarsal involvement as of the September 2020 examination, see 38 C.F.R. § 4.71a, Diagnostic Code 5171; VA Exam (Sept. 17, 2020), at Questions No. 2A ("left 1st toe was amputated distal to the MTP joint on January 31, 2020) and No. 14A ("Great left toe surgically amputated at the MTP joint") (emphasis added), the Veteran may still ultimately be afforded a 10 percent rating under a newly applicable diagnostic code. The Board determines that a remand is warranted to clarify whether or not the amputation of the left great toe included removal of the metatarsal head, and whether amputations of other toes are attributable to the progression of the same disorder, which could implicate an alternative diagnostic code as most advantageous and applicable to the Veteran. In short, the Board concludes that when the Board remanded the Veteran's claim for an increased rating for his left big toe disorder in June 2020, see also Snuffer, supra, the AOJ should have considered all appropriate diagnostic codes pre-and post-amputation in adjudicating the Veteran's claim. The previous examination did not afford the Veteran substantial compliance with previous remand directives. See Stegall, supra. As a result, the Board has no choice but to remand this claim. 3. Entitlement to a compensable rating for service-connected residuals of scars of the left foot is remanded. 4. Entitlement to a TDIU is remanded. The Board concludes that the claim for compensable ratings for scars on the left foot and entitlement to a TDIU are intertwined with claims for an increased rating for chronic gastritis and left toe arthrodesis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue. As that claims have been remanded, the Board concludes that adjudication on the scars and TDIU must also be deferred. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the severity of the service-connected chronic gastritis. The examiner should also fully reconcile the following inconsistencies within the September 2020 examination and other previous findings: (A) The Veteran is service connected for a gastritis disorder since 1997, but the September 2020 examiner indicated that the diagnosis was only effective upon that examination; (B) The Veteran's gastritis is "relieved by standard ulcer therapy," but there is no indication of eroded or ulcerated areas. A rationale for all opinions should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the severity of the service-connected left great toe arthrodesis and residual scars of the left foot throughout the period on appeal, status both pre-amputation dated January 31, 2020 and post-amputation. The examiner should also explain whether the amputation includes amputation of the metatarsal head, whether same is attributable to the progression of the same service-connected disorder, and whether other toe amputations are attributable to same. A rationale for all opinions should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.