Citation Nr: 21072550 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-22 044 DATE: December 3, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for painful scars of the bilateral feet is remanded. Entitlement to an initial compensable rating for left foot scar residuals status post nerve removal is remanded. Entitlement to an initial compensable rating for a right foot scar is remanded. Entitlement to an initial compensable rating for a neck scar is remanded. Entitlement to a rating in excess of 10 percent for right hallux rigidus and valgus (previously bilateral hallux rigidus (limitus), 1st MTP joint with degenerative changes status post hammertoe correction and 1st MTP joint fusion) prior to June 1, 2011, and from August 1, 2011, is remanded. Entitlement to a rating in excess of 10 percent for left hallux rigidus and valgus (previously bilateral hallux rigidus (limitus), 1st MTP joint with degenerative changes status post hammertoe correction and 1st MTP joint fusion) prior to October 18, 2013, and from January 1, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1980 to January 2001. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In March 2019, the Board remanded these matters to the RO for further development. As an initial matter, the Board notes that in a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left shoulder osteoarthritis and bursitis, a left knee strain, and a right knee strain. As these grants are considered full grants of the issues of service connection sought on appeal, these issues are not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, in that same rating decision, the AOJ awarded separate 10 percent ratings for the Veteran's left hallux rigidus and valgus and right hallux rigidus and valgus, which had had previously been characterized and rated as bilateral hallux rigidus, and also awarded service connection for painful scars of the bilateral feet with a 10 percent rating from September 27, 2011. The Board notes that the grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, these increased rating claims are still in controversy and on appeal. Id. Unfortunately, a remand for all the issues on appeal is necessary in order for the AOJ to issue a Supplemental Statement of the Case (SSOC). In this regard, since issuance of the last SSOC concerning these issues in July 2020, additional VA medical records and examinations, relevant to the issues on appeal, have been associated with the Veteran's claims file. These medical records were also received after the Veteran was notified that his appeal was returned to the Board. See August 2020 Board docket notification letter. The Board notes that the Veteran is entitled to an initial review of these records by the AOJ unless he waives such review. 38 C.F.R. §§ 19.37(b), 20.1304(c). As such, in September 2021, a notification letter was sent to the Veteran and his representative informing the Veteran that he had the option to waive AOJ review of the evidence and have the Board adjudicate his appeal. The notification letter also indicated that if the Veteran did not respond within 45 days of the letter that he wished to waive AOJ review of the evidence, the appeal would be remanded to the AOJ for initial consideration of the newly associated evidence. To date, the Veteran has not responded to this notification letter. Therefore, the Board must remand the claim for the AOJ to issue a SSOC. Additionally, on remand, the AOJ should obtain another VA scars examination as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board directed a VA examiner, in conjunction with a VA scar examination, to elicit information regarding the severity, frequency, and duration of any scar flare-ups and the degree of functional loss during flare-ups, and to also identify any symptoms and functional impairments due to the service-connected neck scar, service-connected left foot scar residuals status post nerve removal, and service-connected scar of the right foot, alone, and discuss the effect of these disabilities on any occupational functioning and activities of daily living. Despite these instructions, the December 2019 VA scar examiner did not address any flare-ups of the Veteran's scars nor identify individual symptoms related to each service-connected scar disability. As such, on remand, the AOJ should afford the Veteran another VA scars examination that complies with the March 2019 Board remand directives. Moreover, on remand, the AOJ should also obtain another VA foot conditions examination as there has also not been substantial compliance with the prior Board remand directives concerning this examination. See Stegall, 11 Vet. App. at 271. In this regard, the March 2019 Board remand directives instructed a VA examiner to test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The Board also asked the VA examiner to specifically address whether any limitation of motion of the feet is due to the Veteran's service-connected hallux rigidus and valgus disability, his service-connected scar disabilities, or is due to an alternate cause. Unfortunately, as the most recent VA examination, in December 2019, did not provide this requested information, a remand is warranted for another VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA scar examination by an appropriate clinician to determine the current severity of his service-connected neck scar, left foot scar residuals status post nerve removal, right foot scar, and painful scars of the bilateral feet. The examiner should provide a full description of the four service-connected scar disabilities listed above and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner is also asked to respond to the following: (a) The examiner must also address whether the Veteran experiences flare-ups of his service-connected neck scar, left foot scar residuals status post nerve removal, right foot scar, and painful scars of the bilateral feet. In this regard, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any scar flare-ups, and the degree of functional loss during flare-ups. (b) For each scar disability, the examiner must identify any symptoms and functional impairments and discuss the effect of such on the Veteran's occupational functioning and activities of daily living. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA foot conditions examination by an appropriate clinician to determine the current severity of the Veteran's service-connected left hallux rigidus and valgus and right hallux rigidus and valgus. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. In addition to the above, the VA examiner is requested to respond to the following: (a) As part of the VA examination, the Veteran must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement, or if such testing is not possible or deemed unnecessary, such should be noted. (b) The examiner must address whether the Veteran experiences flare-ups of his right and/or left hallux rigidus and valgus. In this regard, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any scar flare-ups, and the degree of functional loss during flare-ups. (c) The examiner must also address whether any limitation of motion of the feet is due to the service-connected right hallux rigidus and valgus, service-connected left hallux rigidus and valgus, service-connected scar disabilities, or due to an alternate cause. (d) The examiner should discuss the effect of the Veteran's service-connected disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After undertaking the above development and any additional needed development, to include obtaining and associating with the record any further outstanding VA treatment records, readjudicate all the issues on appeal. If the benefits sought remain denied, issue a SSOC and allow the Veteran and his representative an appropriate period of time to respond. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.