Citation Nr: 0809851 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 06-13 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a higher initial rating for hallux valgus of the right foot, currently rated as noncompensably disabling. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION The veteran had active service from March 1979 to August 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in November 2005, a statement of the case was issued in March 2006, and a substantive appeal was received in April 2006. The veteran testified at a Board videoconference hearing in February 2008. A transcript of this hearing is of record. The Board notes, in passing, that the veteran expressly waived RO consideration of newly submitted evidence during this February 2008 hearing; however, as this case must be remanded for further development, the RO will have the opportunity to readjudicate this issue with consideration of the complete record during the processing of the remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks an increased disability rating for service connected disability of her right foot. The Board notes that while a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In this case, the veteran was afforded a VA examination most recently in December 2004. The record reflects that the veteran underwent surgery to treat service-connected hallux valgus in her left foot in August 2007 with medical instructions not to bear weight on the left foot for 4-6 weeks following the surgery. Subsequently, the veteran has continued to report pain and tightness in her left foot, including as shown in a February 2008 VA consultation record. The veteran's left foot difficulties are significant in this case, even though the issue on appeal pertains to rating disability of the right foot; the veteran contends that compensating for her ailing left foot has caused increased stress upon her right foot and, in turn, increased the severity of her service connected right foot disability. During the February 2008 Board hearing, the veteran's representative expressed that "her right foot is having to overcompensate for the major problems that she's having with her left foot." Further, the representative argued that "... you can't just walk on one foot. So, that's why it, it appears that the having to overcompensate on that right foot is causing these additional problems." The Board understands the contentions presented at the February 2008 hearing to assert that the veteran's right foot disability on appeal has worsened since December 2004. Thus, the veteran and her representative have credibly and clearly asserted that the disability on appeal has increased in severity over the period of more than three years since the most recent December 2004 VA examination. Therefore, the Board believes a current VA examination is warranted. In view of the need to remand the case for an examination, the Board believes it appropriate to also direct action to remedy any notice deficiencies in accordance with the recent judicial decision in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). That decision noted that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. Accordingly, the case is REMANDED for the following actions: 1. The RO should furnish the veteran a VCAA notice letter in compliance with the guidance set forth in Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). 2. The RO should arrange for a VA examination by a foot specialist to ascertain the current severity of her service-connected right foot disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All indicated tests and studies should be performed and all findings should be reported in detail to allow for evaluation under applicable VA rating criteria. The examiner is asked to respond to the following: a) Please specifically identify all diagnoses found for the veteran's right foot. For each identified diagnosis, please indicate whether or not it is etiologically related to the veteran's service or a service-connected pathology. b) Is there x-ray evidence of degenerative changes of the right foot? c) Is the hallux valgus of the right foot sufficiently severe that it is functionally equivalent to amputation of the right great toe? d) Regarding any right foot diagnoses found to be related to service or a service-connected pathology, the examiner is asked to offer an assessment as to whether the right foot disability is most fairly characterized as slight, moderate, moderately severe, or severe. e) Clinical findings, including any pertinent ranges of motion, should be reported. If possible, the examiner should report the point (in degrees) at which pain is elicited during any range of motion testing. f) If possible, the examiner should also report whether there is any additional functional loss due to fatigue, weakness, or incoordination, including during flare-ups. 3. The RO is asked to provide clarification of precisely which diagnosed disabilities of the right foot are considered service connected, and which diagnoses of the right foot are not considered service connected. 4. The RO should then review the veteran's claim of entitlement to an increased rating for her service connected disability of the right foot. The RO should take into consideration any newly submitted evidence, including the report of the VA examination requested above. The RO should adjudicate the merits of the claim. If any benefit sought on appeal remains denied, the RO should furnish the veteran and her representative with an appropriate supplemental statement of the case. The case should be returned to the Board after the veteran is afforded an opportunity to respond, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).