Citation Nr: 25005757 Decision Date: 04/28/25 Archive Date: 04/28/25 DOCKET NO. 16-19 255 DATE: April 28, 2025 REMANDED Entitlement to a rating in excess of 10 percent for residuals of stress fracture right third metatarsal (right third toe disability) 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 with the United States Marine Corps from May 1985 to December 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Regarding the Veteran's claim for an increased rating for his right third toe disability, the Veteran testified before the Board at a hearing held by the undersigned in July 2019. A transcript of the hearing is of record. Subsequently, in July 2019 the Board remanded the Veteran's claim for an increased rating for his right third toe disability for further development. Thereafter, in a July 2020 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran's rating for his right third toe disability to 10 percent, effective October 3, 2011. In January 2021, the Board denied the Veteran's claim for a rating in excess of 10 percent for his right third toe disability. In a March 2022 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (Joint Motion) vacating the portion of the January 2021 Board decision that denied a rating in excess of 10 percent for the Veteran's right third toe disability and remanded the matter for further action consistent with the terms of the Joint Motion. Subsequently, in August 2022, July 2023, and June 2024, the Board remanded the Veteran's claim for a rating in excess of 10 percent for the Veteran's right third toe disability for further development. Regarding the issue of entitlement to TDIU, in the January 2021 decision, the Board added the issue of entitlement to TDIU based on the claim being raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating). The Board remanded the matter for further development in January 2021, December 2021, August 2022, July 2023, and June 2024. 1. Entitlement to a rating in excess of 10 percent for a right third toe disability is remanded. In the Board's June 2024 remand, the Board directed the AOJ to schedule the Veteran for a VA examination for the Veteran's right third toe disability claim. A review of the claims file since the June 2024 remand illustrates the Veteran failed to attend the VA examination scheduled for July 22, 2024. However, as the Veteran's representative contended in the March 2025 informal hearing presentation, the claims file does not contain documentation that the Veteran received notice of the scheduled July 22, 2024 VA examination. Accordingly, an additional remand is needed to schedule the Veteran for a VA examination and to answer the questions posed in the June 2024 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).? 2. Entitlement to TDIU is remanded. As a decision on the remanded issue of entitlement to an increased rating for a right foot disability could impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records from February 2025 to the present. 2. After completing the development requested in item 1, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) for the Veteran's right third toe disability claim. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies should be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Regardless of whether the Veteran exhibits pain in the right third metatarsal upon examination, based on the entirety of the record, specifically identify the symptoms associated with the Veteran's right third toe disability that are attributed to his residuals of stress fracture right third metatarsal. Specifically identify the symptoms that are attributed to any other right foot condition, including pes planus, degenerative arthritis, tendonitis, hammer toe, and hallux valgus. If the symptoms of the residuals of stress fracture cannot be separated out from the Veteran's other right foot conditions, then explain why the symptoms cannot be separated. (b.) Opine as to whether the diagnoses of tendonitis, arthritis, and hallux valgus in the right foot are caused or aggravated (any increase in the severity or worsening of functionality) by the Veteran's service-connected residuals of stress fracture of the right third metatarsal. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. (Continued on the next page) ? If the Veteran fails to show for the examination, an appropriate clinician should be asked to provide responses to sections (a.) and (b.) above based on the evidence of record. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.