Citation Nr: 0811275 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-12 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis and osteoarthritis of the midfoot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from September 1952 to September 1954. This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in February 2007. This matter was originally on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey. 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 Board notes that in February 2007 decision, the Board denied the veteran's claim for entitlement to an initial evaluation in excess of 10 percent for service-connected bilateral pes planus with plantar fasciitis and osteoarthritis of the midfoot. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order, dated in October 2007, the Court granted a Joint Motion for Partial Remand of the parties, the Acting VA Secretary and the veteran, and remanded the case to the Board for readjudication consistent with the Motion. The Joint Motion noted that remand was necessary because the Board failed to provide an adequate statement of reasons or bases for its determination. The Joint Motion specifically noted that the veteran's bilateral foot disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5276 and that the Board's decision failed to provide an adequate explanation as to why the veteran's symptoms did not meet the criteria for a higher rating under Diagnostic Code 5276. In addition, the Joint Motion noted that the Board failed to provide an adequate statement of reasons or bases as to whether the veteran would be entitled to a higher rating under a different diagnostic code or whether a separate evaluation may be warranted for bilateral arthritis of the midfoot under Diagnostic Code 5003. Prior to readjudication of the claim, a review of the record discloses a need for further evidentiary development in this case. The veteran was afforded a VA examination on April 29, 2004. The examiner diagnosed osteoarthritis of the midfoot bilaterally, bilateral plantar and posterior heel spurs, plantar fasciitis bilaterally, and mild pes planus deformity. The RO granted service connection for bilateral pes planus with plantar fasciitis and osteoarthritis of the midfoot, leaving out the heel spurs. The Board is uncertain of whether the heel spurs are actually part of the veteran's service-connected disability and requests that the examiner address this question. Also, the x-rays taken on April 29, 2004 gave the impression of "No evidence of degenerative changes." Therefore, the Board would like the examiner to clarify whether there is x-ray evidence of degenerative changes of the midfoot. In addition, the examiner stated, "There is pain on palpation to the arch area. It is very limited and pain and manipulation." Although the Board assumes that "it" is motion, the Board finds that the examiner should clarify the meaning of "it" and address whether any limitation of motion is caused by the bilateral os trigonum noted in the x- ray report. Accordingly, the case is REMANDED for the following action: 1. The claims file should be returned to the VA examiner who conducted the April 2004 feet examination. That examiner should address (1) whether the heel spurs are actually part of the veteran's service-connected disability, (2) whether there is x-ray evidence of degenerative changes of the midfoot, and (3) whether there was any limitation of motion; and if so, whether any limitation of motion is caused by the bilateral os trigonum noted in the April 2004 x-ray report. If the April 2004 VA examiner is not available to comment on the veteran's service-connected bilateral foot disability, the veteran should be scheduled for a new VA examination with an appropriate specialist in order to determine the severity and etiology of any current foot disorders. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. 2. Compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), should be ensured, including notifying the veteran that, to substantiate a claim, the veteran must provide, or ask VA 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. The veteran must also be provided general notice of the requirements under the diagnostic codes under which the veteran's bilateral foot disability is rated (DC 5276) as well as examples of the types of medical and lay evidence that the claimant may submit (or ask VA 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. 3. After the above development has been completed, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MILO H. HAWLEY 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).