Citation Nr: 1007447 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-11 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to a compensable rating for service-connected chronic lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2007, a statement of the case was issued in October 2007, and a substantive appeal was received in February 2008. The Veteran testified at a Board hearing in April 2009. The issue of entitlement to service connection for irritable bowel syndrome was also included in the notice of disagreement and statement of the case, but the February 2008 substantive appeal expressly limited the appeal to the pes planus and lumbar spine issues. 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 At the April 2009 Board hearing, the Veteran testified that there were additional private medical records which were not in the claims file. The record was held open for a period of time as the Veteran indicated that he would obtain such records. Unfortunately, no records have been received. VA's duty to assist the Veteran requires VA to attempt to obtain all identified records. 38 C.F.R. § 3.159. Therefore, appropriate action to obtain the identified records is necessary before the Board may proceed with appellate review. In view of the need to return the case to the RO for additional records, the Board believes is reasonable to also schedule appropriate examinations to ascertain the current severity of the low back disability and to further clarify whether the pes planus is congenital or acquired. The medical opinion now of record regarding the pes planus did not clearly address the factors set forth in 38 C.F.R. § 4.57. Under 38 C.F.R. § 4.57, it is essential to make an initial distinction between bilateral flatfoot as a congenital or as an acquired condition. The congenital condition, with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormality which is not compensable or pensionable. In the acquired condition, it is to be remembered that depression of the longitudinal arch, or the degree of depression, is not the essential feature. The attention should be given to anatomical changes, as compared to normal, in the relationship of the foot and leg, particularly to the inward rotation of the superior portion of the os calcis, medial deviation of the insertion of the Achilles tendon, the medial tilting of the upper border of the astragalus. This is an unfavorable mechanical relationship of the parts. A plumb line dropped from the middle of the patella falls inside of the normal point. The forepart of the foot is abducted, and the foot everted. The plantar surface of the foot is painful and shows demonstrable tenderness, and manipulation of the foot produces spasm of the Achilles tendon, peroneal spasm due to adhesion about the peroneal sheaths, and other evidence of pain and limited motion. The symptoms should be apparent without regard to exercise. In severe cases there is gaping of bones on the inner border of the foot, and rigid valgus position with loss of the power of inversion and adduction. Exercise with undeveloped or unbalanced musculature, producing chronic irritation, can be an aggravating factor. 38 C.F.R. § 4.57. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be requested to furnish the names and addresses of the private medical care providers he referred to at the April 2009 Board hearing indicating that such records were not yet in the file. The RO should then take appropriate action to request all such records. 2. After appropriate efforts to obtain any such records are completed, the Veteran should be scheduled for VA spine and foot examinations. It is imperative that the claims file be made available to the examiners for review in connection with the examinations. The spine examiner should clearly report all examination findings in keeping with VA's rating criteria for the spine, to include range of motions (reporting any additional limitation of motion (in degrees) due to pain, weakness, fatigue or incoordination). The foot examiner should report all examination findings in keeping with applicable rating criteria. The foot examiner should also offer an opinion as to whether the pes planus is congenital or acquired. A rationale should be furnished for the opinion specifically addressing the factors set forth in 38 C.F.R. § 4.57 for distinguishing between congenital and acquired pes planus. 3. After completion of the above, the RO should review the expanded record and determine if the benefits sought can be granted. The Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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. 2009). _________________________________________________ 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) (2009).