Citation Nr: 21025396 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-37 506 DATE: April 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right second toe hammertoe with degenerative joint disease (DJD) residuals of a fracture is remanded. REASONS FOR REMAND The Veteran had active service from September 1969 to September 1971 In February 2019, the Board granted a 10 percent disability rating, but no higher, for the Veteran’s service-connected right toe disability. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR), and vacated the Board’s decision, in part, and remanded the issue back to the Board. In July 2020, the Board remanded this matter for further development. 1. Entitlement to a rating in excess of 10 percent for right second toe hammertoe with DJD residuals of a fracture is remanded. In July 2020, the Board remanded this matter in order to have the Veteran scheduled for a VA examination. The Board directed that the examiner should opine as to whether there would be additional limits on functional ability on repeated use or during flare-ups, including due to pain and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If the examiner was unable to report the degree of additional functional impairment including range of motion loss during repeated use or a flare-up, the VA examiner was to explain why it was not feasible to render such an opinion. The Board also directed that the examiner should opine as to any resultant additional functional impairment (including loss of motion) that would occur during repeated use or flare-ups or explain why it was not feasible to render such opinion. The Board further directed that if the examination was not conducted during a flare-up, the examiner should opine based on estimates derived from the examination as to the additional functional impairment including loss of range of motion that might be present during a flare-up. Review of the February 2021 VA examination shows that while the examiner noted the Veteran’s description of flare-ups as "the pain is just worse and my foot swells. I can barely walk or put weight on it”, and the frequency, severity, and duration of such flare-ups, the examiner did not note whether functional impairment included (or did not include) range of motion lost during repeated use or a flare-up. Also, although the examination was not conducted during a flare-up, the examiner did not opine as to the estimated additional functional impairment including loss of range of motion that may be present during a flare-up. The Board therefore finds that there has not been substantial compliance with the 2020 remand directives, and another remand is warranted. Stegall v. West; 11 Vet. App. 268, 271 (1998). Additionally, the Board notes that in a February 2021 rating decision, the Veteran was granted service connection for metatarsalgia, as secondary to right second toe hammertoe with DJD residuals of a fracture and assigned a 10 percent rating, effective from February 5, 2021, and pursuant to diagnostic code (DC) 5279. As this grant of service connection appears to be at least in part based on pain in the Veteran’s right second toe, the examiner should distinguish which symptoms are related to the service-connected right second toe disability and which are related to the service-connected metatarsalgia. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right second toe disability to include DJD, hammer toe, and healed fracture. The examiner shall be provided with access to the entire claims file, including these remand directives. The examiner shall provide a full description of the disability, and report all signs and symptoms necessary for evaluating the Veteran's disability under the appropriate rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should opine as to whether there would be additional limits on functional ability on repeated use or during flare-ups, including due to pain and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If the examiner is unable to report the degree of additional functional impairment including range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the examiner should opine as to any resultant additional functional impairment (including loss of motion) that would occur during on repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing flares, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should opine, based on estimates derived from the information above, as to the additional functional impairment including loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional functional loss on repeated use or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.