Citation Nr: 1030845 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 09-15 094A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an increased rating for flat feet, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had active service from February 1957 to January 1959. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A Travel Board hearing in front of the undersigned Acting Veterans Law Judge was held in June 2010. A transcript of the hearing has been associated with the claim file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 appellant seeks an increased rating for his service-connected bilateral flat feet, currently rated as 10 percent disabling. After a careful review of the evidence of record, the Board finds that additional development is necessary prior to deciding the appellant's claim. At the Travel Board hearing of June 2010 the appellant testified that his disability had worsened since his last VA examination of November 2008. Specifically, he testified that he was limited in standing or walking because of his flat feet and that when he mowed the lawn he had to sit down frequently and put his feet up until the pain went away. He also stated that he experiences swelling. The Court of Appeals for Veterans Claims has held that when, as here, a Veteran claims that a disability is worse than when originally rated (or last examined by VA), and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Considering the appellant's testimony, the Board finds that a new examination is needed to properly assess the current level of severity of the appellant's bilateral flat feet. In addition, the Board notes that VA outpatient treatment records of March 2009 show that the appellant was being referred to a podiatry consult for foot pain/shoe inserts. The record contains follow-up treatment records dated later that same month which show the appellant was fitted for custom inserts. However, there is no record of a podiatry consult. Moreover, the appellant testified at the hearing that he continued to receive treatment for his bilateral flat feet at the VAMC in Wichita. Considering the evidence as delineated above, the Board finds that there are outstanding records which are relevant to the present claim and which must be obtained and associated with the claim file. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The AOJ should request and associate with the claim file all VA outpatient treatment records for the appellant for the service connected bilateral flat feet from the VAMC in Wichita Kansas, from March 2009 to the present. 2. After the above development has been completed, the AOJ should schedule the appellant for an orthopedic examination to determine the current level of severity of the service connected bilateral flat feet. The claim file should be made available to the examiner. Any indicated tests should be accomplished. The examiner should review the claim folder prior to examination. The examiner should indicate whether the appellant has objective evidence of marked deformity such as pronation or abduction, pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities. The examiner also should specifically indicate if the appellant has marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon Achilles on manipulation, not improved by orthopedic shoes or appliances. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. The AOJ should then readjudicate the appellant's claim on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the requested benefit remains denied, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ SARAH B. RICHMOND Acting 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).