Citation Nr: 21023906 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-15 269 DATE: April 21, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for residuals of a left foot, third toe, non-displaced fracture is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Marine Corps from February 1992 to February 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for the disability with a noncompensable rating. Following, the Veteran appealed the decision to the Board. In April 2015, the Board remanded the matters for further development. They were later returned for appellate review. In a December 2019 decision, the Board granted an evaluation of 10 percent but no higher for the Veteran’s service-connected left third toe disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the parties submitted a Joint Motion for Partial Remand (JMPR) in which they moved to vacate the December 2019 Board decision related to the issue of entitlement to an increased rating in excess of 10 percent for the service-connected left third toe disability. Additionally, in the JMPR, the Veteran abandoned his service connection claim for bilateral plantar fasciitis, relinquishing his right to judicial review of the Board’s decision regarding the claim. In a November 2020 Order, the Court dismissed the Veteran’s service connection claim for bilateral plantar fasciitis and vacated the portion of the Board’s decision related to an increased rating in excess of 10 percent for the residuals of a left foot, third toe, non-displaced fracture. Therefore, the service connection claim is no longer before the Board. The increased evaluation claim has been returned to the Board for readjudication. Lastly, the Board notes that the Veteran testified before the undersigned Veterans Law Judge at a May 2014 Board hearing. A transcript of this hearing is of record. The Veteran was most recently afforded a VA examination in connection with his claim in August 2015. At that time, the Veteran reported that he kept his left third toe wrapped to reduce pressure and that he had recurring painful corns. He indicated that he had flare-ups that made prolonged weight-bearing difficult. The examiner note the presence of a small avulsion fracture with nonunion at the lateral edge of the base of the distal phalanx of the left great toe. It is also noted that he had hallux limitus of mild severity. The examiner did not address the severity level of the Veteran’s service-connected left third toe disability. Furthermore, the examiner did not address that the Veteran uses a prosthetic over his toe. Moreover, in the May 2014 Board hearing, the Veteran testified that he has an open sore on this toe all the time and that he cuts off the corns every two to three weeks to relieve the pain. Lastly, the Board notes that the Veteran testified that he left his job as a supervisor at a Sheraton hotel because his feet could bear standing for 12-hour shifts, five days per week. Id. None of these facts were mentioned in the examination report. Therefore, to adequately assess the severity of the Veteran’s service-connected left great toe disability, a remand is warranted to afford the Veteran a new VA examination. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected residuals of a left foot third toe, non-displaced, fracture. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s post-service medical records and assertions. The examiner should be given copy of this remand and the assertions herein concerning his service-connected disability should be considered. It should be noted that the Veteran is considered competent to attest to factual matters of which he has had first-hand knowledge, including observable symptomatology. The examiner should report all signs and symptoms necessary for rating the left third toe disability under the rating criteria. In particular, he or she should indicate whether the Veteran’s service-connected left third disability is best characterized as moderate, moderately severe, or severe and the basis for this assessment. The VA examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or in coordination associated with the left third toe. In addition, the VA examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his left third toe due to pain or any of the other symptoms during flare-ups or with repeated use. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including the frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left third toe after repeated use over time. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.