Citation Nr: 21007107 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 18-00 488 DATE: February 8, 2021 REMANDED Entitlement to a compensable rating for fracture of 2nd through 5th metatarsal bones, right foot (hereinafter “right foot disability”) is remanded. Entitlement to a compensable rating for right foot surgical scars is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 2001 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in an April 2011 rating decision, the RO granted service connection for a right foot disability and assigned a 0 percent disability rating, effective January 19, 2011. In April 2016, the Veteran filed a claim for an increased rating for his right foot disability. In the October 2016 rating decision on appeal, the RO granted service connection for right foot surgical scars and assigned a 0 percent disability rating, effective September 21, 2016. The RO also denied entitlement to a compensable rating for the Veteran’s right foot disability. In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. 1. Entitlement to a compensable rating for a right foot disability is remanded. 2. Entitlement to a compensable rating for right foot surgical scars is remanded. The Veteran asserts he is entitled to compensable ratings for his service-connected right foot disability and surgical scars on his right foot. The Board finds that this matter must be remanded for additional development. In September 2016, the Veteran was provided a VA examination to assess his right foot disability. In the September 2016 VA examination report, the examiner indicated that the Veteran had one prior foot surgery in 2005 and that he had scars related to his right foot disability, but that the scars were not painful or unstable, did not have a total area equal to or greater than 90 square centimeters, and were not located on the head, face, or neck. No range of motion testing was documented, and no numbness or neurological manifestations were noted to be present. The Veteran asserts that the September 2016 VA examination was inadequate and contained incorrect information. See July 2017 Notice of Disagreement (NOD); December 2017 VA Form 9. Specifically, in a December 2017 VA Form 9, the Veteran wrote, “There were many things that should have been done during the examination that were not performed as well as incorrect information given to make a final rating decision. For example, the measurement of the scars is completely incorrect. My foot was never examined for range of motion. The length of my examination was no longer than 10 minutes and that is being generous. I am almost certain that if the examination would have been done properly the out come (sic) would have been different.” Additionally, during the February 2021 Board hearing, the Veteran reported that he underwent a third surgery on his foot and that he is experiencing numbness in his fourth toe. Based on the foregoing, the Board finds that an additional VA examination should be provided to ascertain the current severity of the Veteran’s right foot disability and related surgical scars. Accordingly, the matters are REMANDED for the following action: 1. Provide the Veteran with an additional VA examination, if possible, to determine the current severity of his right foot disability and right foot surgical scars. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. ** IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, refer the case to an appropriate examiner for a thorough review of the record and possible telephone/virtual interview with the Veteran. After a thorough review of the record and examination of the Veteran (if possible), the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his right foot disability and right foot surgical scars. In doing so, obtain information from the Veteran (and the record) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. Also, indicate any and all associated orthopedic, neurologic, and scar manifestations. (b) Full range of motion (ROM) testing must be performed where possible. The joint involved and the opposing joint should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition to the above testing, the examiner should also address any ameliorative effects of medications the Veteran uses to treat his right foot disability. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on occupational functioning. If the examiner determines that flare-ups cause variable reductions in ROM of the affected joints, he or she must use information obtained from the Veteran to estimate variations in reduced ROM in terms of degrees. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). 2. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.