Citation Nr: 21007160 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 09-03 408A DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to November 14, 2012 for hammertoes right foot disability is remanded. Entitlement to a rating in excess of 10 percent prior to February 20, 2015 for hammertoes left foot disability with claw foot is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 14, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1988 to March 1990. In July 2012 and December 2014, the Board, in part, remanded the issues for higher ratings for service-connected hammertoes right and left foot disabilities as well as for entitlement to a TDIU for additional evidentiary development. The case has been returned to the Board for appellate review. 1. Entitlement to a rating in excess of 10 percent prior to November 14, 2012 for hammertoes right foot disability 2. Entitlement to a rating in excess of 10 percent prior to February 20, 2015 for hammertoes left foot disability with claw foot The Board considers whether a rating in excess of 10 percent for hammertoes right foot disability is warranted at any from January 24, 2007 (one year prior to the date of claim) to November 13, 2012. See 38 C.F.R. § 4.71A, Diagnostic Code 5282. The Board also considers whether a rating in excess of 10 percent for hammertoes left foot disability with claw foot is warranted at any from January 24, 2007 (one year prior to the date of claim) to February 19, 2015. Id. at Diagnostic Code 5278. Pursuant to the December 2014 Board remand, the Agency of Original Jurisdiction (AOJ) was instructed to schedule the Veteran for a VA examination by an appropriate professional to determine the extent and severity of his service-connected right foot disability (to include hammertoes of toes two through five) and service-connected left foot disability (to include hammertoes and clawing of the left great toe). The examiner must, in part, diagnose all right and left foot disabilities to include claw foot, hallux valgus, pes planus, etc. and provide a medical opinion as to whether it is at least as likely as not that any diagnosed right and left foot disabilities are related to the service-connected right and left foot disabilities. Review of the record shows that the Veteran was afforded a VA Disability Benefits Questionnaire (DBQ) examination for foot conditions, including flatfoot (pes planus) in June 2016. Following the clinical evaluation and review of the claims file, the VA examiner documented the Veteran underwent amputation of right foot toes in 2013 and left below the knee amputation in 2015 and provided a VA DBQ medical opinion regarding neurological impairment and TDIU. In light of the conflicting medical evidence of record, as discussed in the December 2014 Board remand, regarding the existence and etiology of any foot disability (other than hammertoes) prior to the amputations, the Board finds that an additional VA medical opinion is needed to properly assess the clinical severity of the right foot disability prior to November 14, 2012 and for the left foot disability prior to February 20, 2015. 3. Entitlement to a TDIU prior to November 14, 2012 In a June 2003 VA Form 9, the Veteran raised the issue of entitlement to a TDIU due to his service-connected lumbar spine disability, thus the Board finds this issue is considered as raised by the record in connection with a pending claim (at that time) for entitlement to a higher initial rating for lumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board finds that the date of claim for entitlement to a TDIU was on Mach 18, 1997 (the date of claim for entitlement to a higher initial rating for lumbar spine disability). While the issue of entitlement to a TDIU since November 14, 2012 was granted in the October 2020 VA rating decision, the issue for entitlement to a TDIU prior to November 14, 2012 was last adjudicated in the October 2020 SSOC and remains on appeal for appellate review. While the Board remands the issues of entitlement to a rating in excess of 10 percent prior to November 14, 2012 for hammertoes right foot disability and a rating in excess of 10 percent prior to February 20, 2015 for hammertoes left foot disability with claw foot, for additional evidentiary development, as discussed above, those decisions may impact this claim for TDIU from March 18, 1997 to November 13, 2012. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran’s claims file to an appropriate clinician to provide a retrospective opinion regarding the severity of the Veteran’s service-connected hammertoes right foot disability prior to November 14, 2012 and service-connected hammertoes left foot disability with claw foot prior to February 20, 2015. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: VA examination reports dated in February 2008, October 2009, September 2011 (7th and 10th), and August 2012 December 2007 VA treatment record Private treatment records, June 2016 letter, and August 2013 private DBQ examination report from Dr. Butler First, the examiner must address the following for the right foot: (a.) Identify all right foot disabilities, to include claw foot, hallux valgus, pes planus, etc., that existed at any time from January 24, 2007 to November 13, 2012. (b.) Then, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each identified disability from January 24, 2007 to November 13, 2012 was separate and distinct from the service-connected hammertoes right foot. (c.) If so, provide an opinion as to whether it is at least as likely as not that each identified separate and distinct disability (from January 24, 2007 to November 13, 2012) was proximately due to or the result of the service-connected hammertoes right foot disability. (d.) Also provide an opinion as to whether it is at least as likely as not that each identified separate and distinct disability (from January 24, 2007 to November 13, 2012) was aggravated beyond its natural progression by the service-connected hammertoes right foot disability. Second, the examiner must address the following for the left foot: (e.) Identify all left foot disabilities, to include claw foot, hallux valgus, pes planus, etc., that existed at any time from January 24, 2007 to February 19, 2015. (f.) Then, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each identified disability from January 24, 2007 to February 19, 2015 was separate and distinct from the service-connected hammertoes left foot with claw foot. (g.) If so, provide an opinion as to whether it is at least as likely as not that each identified separate and distinct disability (from January 24, 2007 to February 19, 2015) was proximately due to or the result of the service-connected hammertoes left foot disability with claw foot. (h.) Also provide an opinion as to whether it is at least as likely as not that each identified separate and distinct disability (from January 24, 2007 to February 19, 2015) was aggravated beyond its natural progression by the service-connected hammertoes left foot disability with claw foot. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all medical opinions provided to ensure that the requested information was provided. If any opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims on appeal, to include consideration of a TDIU at any time from March 18, 1997 to November 13, 2012 on an extra-schedular basis consistent with 38 C.F.R. § 4.16(b). If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. Lesley A. Rein Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, 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.