Citation Nr: 22016144
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 15-33 344
DATE: March 21, 2022

REMANDED

Entitlement to an initial rating in excess of 10 percent prior to June 19, 2015 and a rating in excess of 30 percent from September 1, 2015 for hallux rigidus with degenerative joint disease (DJD), right first metatarsophalangeal joint (right great toe condition), is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from May 1983 to December 1993.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In June 2021, the claim was remanded by the Board to the agency of original jurisdiction (AOJ) for further development. After accomplishing the above, the AOJ granted a total temporary total rating based on required convalescence following surgery for his service-connected right great toe condition, from June 19, 2015 to September 1, 2015. The AOJ also assigned a 30 percent rating, but no higher, effective September 1, 2015, for his right great toe condition (as reflected in an October 2021 rating decision and an October 2021 supplemental statement of the case (SSOC)).

Entitlement to a higher rating for right great toe condition is remanded

As noted in the June 2021 Board remand, there was evidence that the Veteran's condition may have worsened in the six years since his last VA examination, and the Board found that a new VA examination was warranted. Pursuant to the Board remand, the Veteran underwent VA foot condition examination in October 2021 by D.H. a nurse practitioner (NP). 

In February 2022 correspondence, the Veteran's representative objected to the October 2021 VA foot condition examination, stating that she did not possess any "specialized training, education or experience" that would indicate that she is "qualified to fairly and thoroughly assess these types of complex orthopedic condition." The Veteran's representative has also requested a copy of the curriculum vitae of the VA examiner and requested that and other information about qualifications of that VA examiner. The Board notes that once a veteran has raised the issue of an examiner's competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019).

On remand, the Veteran should be provided a copy of the October 2021 examiner's curriculum vitae or other information regarding the examiner's qualifications. 

The matter is REMANDED for the following action:

1.  Obtain any outstanding treatment records related to his right great toe condition, to include any VA records. Request that the Veteran provide sufficient information, and if necessary, authorization to enable the AOJ to obtain any relevant outstanding non-VA treatment records.

2. Provide the Veteran information regarding the qualifications of the October 2021 VA examiner, to include a curriculum vitae or other similar material and include copies of the information provided to the Veteran in the claims file. If the information cannot be provided, send correspondence to the Veteran and his representative, explaining why it cannot be provided.

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Kovacs, 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.