Citation Nr: 21010246 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-60 844 DATE: February 24, 2021 REMANDED Entitlement to a compensable rating for left foot hallux valgus is remanded. Entitlement to a compensable rating for right foot hallux valgus is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1970 to October 1990. The Veteran died in April 2017, and the appellant is the Veteran’s surviving spouse. 38 U.S.C. § 101(3). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied entitlement to increased ratings for left and right hallux valgus and a TDIU, and the appellant appealed to the United States Court of Appeals for Veterans Claims (Court). A June 2020 Court order implemented a Joint Motion for Remand, vacating and remanding that portion of the August 2019 denials. In July 2020 correspondence, the appellant was notified that the appeal had been returned to the Board following the Court order. In August 2020, the appellant submitted a new power of attorney form in favor of a private attorney, who is now the representative of record. In October 2020, the appellant and her current representative were again notified that the appeal had been returned to the Board, and the attorney submitted an appellate brief in January 2021. The 90-day period for the submission of evidence following the October 2020 notice letter has since passed. Clark v. O’Rourke, 30 Vet. App. 92, 97–99 (2018). The Board notes that there is a separately perfected appeal concerning entitlement to service connection for hepatitis C and entitlement to increased ratings for left and right upper extremity peripheral neuropathy. However, those issues are part of a separate appeal currently awaiting a hearing before a Veterans Law Judge (VLJ), as reflected in a September 2019 notice letter. As such, those issues will be the subject of a separate Board decision issued by the VLJ who presides over the requested hearing. 1. Entitlement to a compensable rating for left and right foot hallux valgus. As stated in the Joint Motion for Remand, treatment records associated with the file reflect that documents have been scanned into VistA Imaging which are possibly relevant to the claims for increased ratings for left and right foot hallux valgus. However, there is no evidence that attempts have been made to obtain these records. As such, and as instructed in the Joint Motion for Remand, a remand is necessary so that the RO may make necessary efforts to obtain any records contained in VistA Imaging. 38 C.F.R. § 3.159(c)(2). 2. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the increased rating claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include any records contained in VistA imaging. If the search for these records is negative or the records are unavailable, the appellant must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.