Citation Nr: 1032885 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 07-24 173 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for asthma. 2. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes cavus with plantar fasciitis. 3. Entitlement to an initial evaluation in excess of 10 percent for status post left fourth metatarsal fracture. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1986 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah (RO). In June 2010, the Veteran testified in a travel board hearing at the RO before the undersigned. A transcript of the hearing is associated with the claims file. 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 Although further delay is regrettable, additional development is necessary in order to adjudicate the issues on appeal. In this case, the Veteran contends, in essence, that his asthma, bilateral pes cavus, and left fourth metatarsal fracture have worsened since his last VA examinations in 2007. Specifically, the Veteran testified that he has more difficulty breathing and that his asthma interferes with his job duties, causing him to miss work due to asthma attacks. The Veteran reported that his pes cavus and left fourth metatarsal fracture have become increasingly painful as well, making it difficult to stand for long periods of time as required by his job. The Board notes that the Veteran's most recent VA examinations (October, November, and December 2007) are now approximately three years old and do not contemplate the Veteran's recent treatment or his contentions regarding the current severity of his disabilities. The United States Court of Appeals for Veterans Claims has held that, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As such, on remand the Veteran should be afforded contemporaneous examinations for his disabilities. With regard to entitlement to an increased rating on an extraschedular basis, the Veteran contends that his work is negatively affected by his disabilities. Specifically, he reported that he missed five days of work in the past year due to asthma attacks. He also reported difficulty standing for long periods of time due to his foot disorders. The evidence of record shows that the Veteran is currently employed at Fort Hood where he trains troops in tactical combat casualty care. The Board notes that the Veteran's disabilities may present an exceptional or unusual disability picture, if his symptoms result in marked interference with employment beyond that contemplated by the schedule for rating disabilities or frequent periods of hospitalization are shown to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2009). On remand, the RO should also consider the Veteran's claims on an extraschedular basis. Additionally, the Veteran's most recent and relevant (if any) VA and private treatment records should also be obtained and associated with the claims file. See 38 C.F.R. § 3.159(c) (2009). Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, attempt to obtain any relevant VA and/or private treatment records not yet associated with the claims file. If no records can be found, it should be so stated. All efforts made to obtain these records must be documented in the claims folder. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2009) 2. Inform the Veteran of the elements of a claim for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The Veteran should be asked to furnish records verifying that he experiences marked interference with employment, that he has had frequent periods of hospitalization, or that he is unable to follow a substantially gainful employment due to his asthma, pes cavus, and/or left metatarsal fracture (collectively or separately). This evidence may include any correspondence from an employer or physician that would verify his contentions, and/or medical records showing periods of hospitalization. 3. Provide the Veteran an examination for the purpose of determining the nature and extent of his asthma. The claims folder and a copy of this remand should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All necessary tests and studies should be accomplished in accordance with AMIE protocols for rating asthma. 4. Provide the Veteran an examination for the purpose of determining the nature and extent of his bilateral pes cavus. The claims folder and a copy of this remand should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All necessary tests and studies should be accomplished in accordance with AMIE protocols for rating foot disabilities. 5. Provide the Veteran an examination for the purpose of determining the nature and extent of his status post left fourth metatarsal fracture. The claims folder and a copy of this remand should be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All necessary tests and studies should be accomplished in accordance with AMIE protocols for such disabilities. 6. The RO must notify the Veteran that it is his responsibility to report for any VA examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. Copies of all documentation notifying the Veteran of any scheduled VA examination must be placed in the Veteran's claims file. 7. Following completion of the foregoing, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. 8. Then, readjudicate the remanded claims in light of all pertinent evidence and legal authority, to include issues of an increased rating for asthma, bilateral pes cavus, and status post left metatarsal fracture on an extraschedular basis. If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ LANA K. JENG 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).