Citation Nr: 21074436 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 20-26 856 DATE: December 15, 2021 REMANDED Entitlement to a compensable evaluation for hammertoes on the right foot is remanded. Entitlement to a compensable evaluation for hammertoes on the left foot is remanded. Entitlement to an extraschedular rating for hammertoes on the right foot is remanded. Entitlement to an extraschedular rating for hammertoes on the left foot is remanded. Entitlement to an effective date earlier than April 14, 1992 for entitlement to service connection for hammertoes on the right foot is remanded. Entitlement to an effective date earlier than April 14, 1992 for entitlement to service connection for hammertoes on the left foot is remanded. REASONS FOR REMAND The Veteran had active military service from July 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue involving waiver of the recovery of an overpayment of VA compensation benefits and the issue of whether the Veteran was underpaid VA compensation have both been addressed in a November 2021 Board decision. 1. Entitlement to a compensable evaluation for hammertoes on the right foot is remanded. 2. Entitlement to a compensable evaluation for hammertoes on the left foot is remanded. The Veteran's testimony indicates the Veteran's hammertoes on the left and right foot have worsened. A VA examination is needed to determine the current severity of the Veteran's hammertoe. 3. Entitlement to an extraschedular rating for hammertoes on the right foot is remanded. 4. Entitlement to an extraschedular rating for hammertoes on the left foot is remanded. Relying on the evidence of record at this time, the Veteran's hammertoes do not meet the schedular requirements for a higher rating under the relevant diagnostic codes. However, during the August 2021 hearing, the Veteran explained that his hammertoes have caused him to fall once a week due to the impact the Veteran's range of motion. The Veteran reported problems with mobility as well due to his hammertoes. The Veteran reported symptomatology and functional impairment that presents an unusual or exceptional disability picture that is not reasonably contemplated by the Diagnostic Code 5282 for hammertoes, and the Veteran's testimony suggests he has experienced frequent hospitalization due to falls from his service-connected hammertoe disability. The Veteran's claim for an increased rating is being remanded and referred to VA's Director of Compensation Service for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 5. Entitlement to an effective date earlier than April 14, 1992 for entitlement to service connection for hammertoes on the right foot is remanded. 6. Entitlement to an effective date earlier than April 14, 1992 for entitlement to service connection for hammertoes on the left foot is remanded. In a January 2015 rating decision, the RO granted service connection for hammertoes on the left and right foot. The RO assigned an effective date of April 14, 1992. In June 2015, the Veteran filed a notice of disagreement with the January 2015 decision arguing that a higher rating was warranted as well as an earlier effective date. The Veteran's representative clarified during the hearing that the Veteran sought an effective date of the day following his discharge from the military. The Veteran testified that his hammertoes began during service. A remand is needed to determine when the Veteran was first diagnosed with hammertoes. A January 1991 VA examination notes a right toe diagnosis, but it is unclear if he had hammertoes at that time. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2020 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician at the Lexington VA Medical Center to determine the current severity of his service-connected hammertoes on the left and right foot. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner 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 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). After reviewing the claims file including examinations and treatment records, the examiner should also provide an opinion as to when the Veteran's bilateral hammertoe began. Included in the review, the examiner should consider the January 1991 VA examination to determine if the right toe diagnosis was in fact at least as likely as not a diagnosis of hammertoe. The March 1991 rating decision also indicates right toe deterioration. 3. Refer the Veteran's claim for an increased rating for hammertoes on the right and left foot to VA's Director of Compensation Service for extraschedular consideration. 4. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samdani, 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.