Citation Nr: 0812139 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-10 790A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left knee disability. 2. Entitlement to an initial rating in excess of 20 percent for right foot neuroma with hammertoe deformities. 3. Entitlement to an initial rating in excess of 10 percent for hallux valgus and hammertoe deformities of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from July 1982 to November 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction over the case was transferred to the RO in Baltimore, Maryland in May 2004. The veteran testified before the undersigned at a hearing held at the Board's offices in Washington, DC in December 2007. The record reflects that the veteran perfected his appeal of the right and left foot issues in April 2005. The report of a September 2005 informal Decision Review Officer (DRO) conference indicates that the veteran expressed satisfaction with the evaluations assigned his feet. The report notes that his appeal as to three other issues would be withdrawn, and that the appeal as to the foot disorders would be "closed." The Board points out, however, that neither the veteran nor his representative has actually withdrawn the appeal as to the foot disorders. See 38 C.F.R. § 20.204(a) (2007). The Board moreover points out that the veteran has continued to present argument as to those issues, and testified to those matters at his December 2007 hearing. For those reasons, the Board finds that the issues on appeal are as listed on the title page of this action. Although the veteran was issued a statement of the case in June 2005 as to the issues of the proper rating assignable for tinea pedis and service connection for gout, his representative withdrew the gout issue by signature at the September 2005 DRO conference, and the veteran indicated at the conference that he was satisfied with the tinea pedis rating; neither he nor his representative thereafter presented argument concerning the tinea pedis rating. In addition, although the veteran was issued a statement of the case in February 2007 as to the proper disability evaluations assignable for right knee and cervical spine disorders, and as to the issues of service connection for headaches and right leg disability, no further communication from the veteran or his representative regarding those issues has been received. The Board therefore will limit its consideration to those issues listed on the title page of this action. 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 contends that the evaluations assigned his left knee and bilateral foot disorders do not accurately reflect the severity of those conditions. Turning first to the left knee disorder, at his December 2007 hearing the veteran alleged that the disorder had worsened in severity since his last relevant VA examination in November 2005. He provided specific examples of the worsening, including instability and giving way of the knee joint. This is particularly noteworthy because the veteran's left knee is afflicted with arthritis. See VAOPGCPREC 23-97 (a claimant who has arthritis and instability of the knee may, in some circumstances, be rated separately under Diagnostic Codes 5003 and 5257). Given his testimony suggesting an increase in severity since the last VA examination of record, a remand is required in order to conduct a current examination. Cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As to the foot disorders, the record reflects that the RO "closed" his appeal of those issues in September 2005. Consequently, while numerous medical records were added to the record since then, including entries for 2004 and 2005 pertinent to both feet, a supplemental statement of the case has not been issued which addresses that evidence in the context of the foot disorders. A remand therefore is required. See 38 C.F.R. § 19.31 (2007). In addition, the record shows that the veteran was last examined for his foot disorders in June 2004. Although the examiner noted the presence of pain in both feet, he did not address the functional impairment due to such pain. At the veteran's hearing, his representative argued that the functional loss from pain warranted assignment of higher ratings. See generally VAOPGCPREC 9-98 (Depending on the nature of the foot injury, 38 C.F.R. § 4.71a, Diagnostic Code 5284 may involve limitation of motion and therefore requires consideration under sections 4.40 and 4.45). In light of the above, the Board finds that further VA examination of the veteran's service-connected foot disorders is warranted. Accordingly, the case is REMANDED for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claims. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. If the RO is unsuccessful in obtaining any medical records identified by the veteran, it should inform the veteran and his representative of this and ask them to provide a copy of the outstanding medical records. 3. Thereafter the RO should schedule the veteran for a VA examination by a physician with appropriate expertise to determine the nature, extent and severity of the left knee disability; the nature, extent and severity of the right foot neuroma with hammertoe deformities; and the nature, extent and severity of the hallux valgus and hammertoe deformities of the left foot. All indicated studies, including X-rays and range of motion studies in degrees, should be conducted, and all findings should be reported in detail. The specific extent of any left knee instability or subluxation should be noted. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physician should be requested to identify any objective evidence of pain or functional loss due to pain. The specific functional impairment due to pain should be identified, and the examiner should be requested to assess the extent of any pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare- ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the physician should so state. The examiner should also provide an opinion as to the impact of the veteran's left knee disability, right foot neuroma with hammertoe deformities; and hallux valgus with hammertoe deformities of the left foot on his ability to work. The rationale for all opinions expressed should be provided. The claims folders, including a copy of this remand, must be made available to the examiner. 4. The RO should then prepare a new rating decision and readjudicate the issues on appeal. In readjudicating the left knee claim, the RO should consider whether separate evaluations are warranted for the components of the left knee disorder under VAOPGCPREC 23-97 and/or VAOPGCPREC 9-04. If the benefits sought on appeal are not granted in full the RO must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).