Citation Nr: 0005983 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 95-40 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for residuals of the excision of an osteophyte from the left fourth toe, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of an injury of the right big toe and excision of an osteophyte from the right fourth toe, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Jesse L. Kearney, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Roberts, Counsel INTRODUCTION The veteran served on active duty from August 1978 to July 1984. This appeal arises before the Board of Veterans' Appeals (Board) from an August 1995 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which continued noncompensable ratings for residuals of an excision of an osteophyte from the left fourth toe and for residuals of an injury of the right big toe and excision of an osteophyte from the right fourth toe. The veteran established increased ratings of 10 percent for those disabilities by means of a January 1997 rating decision. However, as that decision does not constitute a full grant of benefits sought on appeal, these claims remain before the Board. This claim was previously before the Board and was the subject of an October 1997 Board decision. The October 1997 Board decision was vacated by a July 1999 Order of the United States Court of Appeals for Veterans Claims and these claims are again before the Board. REMAND The United States Court of Appeals for Veterans Claims (Court) has held that VA has a duty to assist claimants in the development of facts pertinent to their claims and that VA must accomplish additional development of the evidence if the record currently before it is inadequate. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999); Littke v. Derwinski, 1 Vet. App. 90 (1990). A July 1999 Court decision was issued in this case in which the Court found that the Board failed to articulate adequate reasons and bases for a previous decision on these claims. The Court decision found that the Board failed to adequately address any functional loss due to pain as a result of the veteran's disabilities. The Court decision also noted that the examination reports the Board relied upon in rendering its decision had failed to adequately address functional loss due to pain. The Board feels that a VA examination would be useful in determining the current extent and severity of the veteran's disabilities and in determining the extent of any functional loss due to pain. Accordingly, this case is REMANDED for the following development: 1. The RO should schedule the veteran for a VA feet examination. The claims folder and a copy of this remand should be made available to and be reviewed by the examiner prior to the examination. Specifically the examiner should provide the following information: a) The examiner should perform a thorough review of the veteran's claims file and medical history and should state in the examination report that such review has been conducted. b) The examiner should examine the veteran's service-connected toe disabilities and provide a description of all symptomatology resulting from those service- connected toe disabilities. c) The examiner should state whether or not the veteran's service-connected residuals of the excision of an osteophyte from the left fourth toe results in any loss of motion, excess motion, weakened motion, excess fatigability, or pain on motion. For each sign listed, the examiner should specifically state whether or not that sign is shown, and if shown, should provide an opinion as to the frequency and/or severity. The examiner should specifically state whether or not there is any objective evidence of pain on motion as a result of this disability and should provide a detailed opinion regarding the extent of any functional loss due to pain. d) The examiner should state whether or not the veteran's service-connected residuals of an injury of the right big toe and excision of an osteophyte from the right fourth toe results in any loss of motion, excess motion, weakened motion, excess fatigability, or pain on motion. For each sign listed, the examiner should specifically state whether or not that sign is shown, and if shown, should provide an opinion as to the frequency and/or severity. The examiner should specifically state whether or not there is any objective evidence of pain on motion as a result of this disability and should provide a detailed opinion regarding the extent of any functional loss due to pain. 2. The RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. Specific attention is directed to the examination report. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 3. Following completion of the foregoing, the RO should review the issues on appeal. If the decision remains adverse to the veteran, in whole or in part, he and his representative should be furnished a supplemental statement of the case and afforded the applicable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. The Board expresses its gratitude in advance to the RO for assisting in the requested development. The purpose of this REMAND is to obtain additional evidence and to comply with the mandate of the Court. No inference should be drawn regarding the final disposition of this claim. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with any requested development may have an adverse effect upon his claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). M. W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).