Citation Nr: 23017653
Decision Date: 03/21/23	Archive Date: 03/21/23

DOCKET NO. 12-17 420
DATE: March 21, 2023

REMANDED

Entitlement to an initial disability in excess of 10 percent for residuals of a right great toe fracture 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 2006 to October 2010.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

By way of background, the Board most recently denied these claims in a May 2021 decision.  The full procedural background of the claim is outlined in the prior May 2021 Board decision and is incorporated herein by reference. The Veteran appealed the decision to the United Court of Appeals for Veterans Claims (Court).  In an August 2022 decision, the Court set aside the May 2021 Board decision and remanded the matters to the Board for further development and readjudication  consistent with its decision.

1. Entitlement to an initial disability in excess of 10 percent for residuals of a right great toe fracture is remanded.

2. Entitlement to a TDII is remanded.

In its August 2022 decision, the Court found that the March 2021 VA examination opinion was inadequate to adjudicate his increased rating claim for his right great toe disability.  First, the VA examiner's rationale primarily addressed causation instead of aggravation and second, the examiner did not use the relevant baseline for aggravation, namely the severity of the Veteran's pes planus before any impact on that condition by his service-connected great right toe disability.  As such, the Court found that the Board had erred in finding that there had been substantial compliance with its November 2020 remand directives.  The Court further found that the issue of entitlement to a TDIU was inextricably intertwined with the increased rating claim.  

In light of the foregoing, the Board finds that a remand is warranted to obtain a supplemental opinion.  

The matters are REMANDED for the following action:

Obtain a supplemental VA opinion from an appropriately qualified examiner, who HAS NOT previously provided an opinion, regarding the severity of the Veteran's great right toe disability.  Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination.  Provide the claims file, including a copy of this REMAND, to the examiner for review.

After review of the claims file, the examiner should address the following:

(a) Whether the Veteran's diagnosed pes planus was proximately due to, or the result of, his service-connected great right toe disability; and

(b) Whether the Veteran's diagnosed pes planus was aggravated by his service-connected great right toe disability.  

The examiner is advised that the relevant baseline for aggravation is the severity of the pes planus before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and receipt of medical evidence establishing the current level of severity of the pes planus.  

The examiner is further advised that the rationale supporting the aggravation opinion should be responsive to whether the Veteran's pes planus was aggravated by his service-connected disability and not whether it was proximately due to, or the result of, his service-connected disability.  

A complete rationale for all opinions must be provided.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Ko, 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.