Citation Nr: 1035366 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 08-09 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service- connected plantar callosities of the right foot with a history of corn on the right fifth toe. 2. Entitlement to a rating in excess of 10 percent for service- connected plantar callosities of the left foot prior to June 22, 2007, and since January 1, 2008. 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected plantar callosities of the right and left feet. 4. Entitlement to service connection for a left knee disability, to include as secondary to service-connected plantar callosities of the right and left feet. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Meawad INTRODUCTION The Veteran served on active duty from March 1973 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated February 2007 and August 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claims. In an August 2008 rating decision, the RO assigned a temporary total evaluation pursuant to 38 C.F.R. § 4.30 (2009), for the service- connected left foot disability, effective June 22, 2007; followed by a 10 percent rating effective January 1, 2008. As such, the issue on appeal is as noted on the title page. In July 2010, the Veteran was afforded a personal hearing before the undersigned. A transcript of the hearing is of record. The issue of entitlement to service connection for a low back disability, to include as secondary to the service- connected bilateral foot disabilities, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate 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 During the July 2010 personal hearing, the Veteran stated that he began receiving benefits the Social Security Administration (SSA) in 2008 based on being unable to work due to his feet. A review of the claims file reveals that disability records from SSA have not been requested. As such, the RO should attempt to obtain the Veteran's records from SSA on remand. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Hayes v. Brown, 9 Vet. App. 67 (1996). The Veteran claims that his service-connected plantar callosities of the right and left feet warrant a higher rating. During the July 2010 hearing, the Veteran stated that his pain has worsened since his December 2007 foot surgery. He described having sharp pain even when seated and he has to stop what he is doing until the pain subsided. In addition, during VA treatment in March 2009, the Veteran complained that his pain was getting worse and he was unable to swat. The Veteran was found to have bilateral hallux rigidus and severe scar tissue of the first metacarpophalangeal joint of the left foot with limits range of motion. The Veteran was afforded a VA examination in April 2008; however, the Board finds that based on the Veteran's testimony and VA treatment records, another examination is necessary in this case in order to ascertain the current severity of the Veteran's service-connected plantar callosities of both feet, including any additional disability related to scarring from the June and December 2007 surgeries of the left foot. Snuffer v. Gobber, 10 Vet. App. 400 (1997). The Veteran also claims that his service-connected plantar callosities of the right and left feet cause problems with both knees. In a letter received July 2010, Dr. P.C.H. stated that the Veteran was seen in her clinic for complaints including bilateral knee pain. There is no indication that the RO attempted to obtain the Veteran's private treatment records and these records should be obtained on remand. 38 C.F.R. § 3.159(c)(1). During the July 2010 hearing, the Veteran testified that he suffered from symptoms of pain and instability and was told that these symptoms were caused by the limp resulting from his bilateral feet disability. Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310; Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, the Board finds that the Veteran should be afforded a VA examination on remand to obtain a medical opinion to determine if the Veteran's service-connected plantar callosities of the right and left feet proximately caused or aggravated any current disability of the knees. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). The Veteran's claims on appeal include a claim for TDIU. In the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the appellant's service-connected disability has on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Although the Veteran underwent an examination in April 2008, which considered whether his service-connected plantar callosities of the right and left feet affected his ability to work, the Board finds that as examination of the plantar callosities of the right and left feet and the knees is necessary, the examiner should provide an updated opinion on the Veteran's claim for TDIU based on any new findings on remand. Therefore, the Veteran should be afforded a VA examination to obtain a medical opinion in order to determine the effect of the Veteran's service-connected disabilities on his ability to work. Such an opinion is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative appropriate notice with respect to the claim of service connection based on aggravation. 2. Obtain a copy of any SSA decision regarding disability benefits for the Veteran. Request from SSA copies of all the documents or evidentiary material that was used in considering the Veteran's claim for disability benefits. 3. Make arrangements to obtain the Veteran's complete treatment records from the office of Dr. P.C.H. If these records are not available, a negative reply is required. 4. After completion of the foregoing, schedule the Veteran for appropriate VA examinations to ascertain the current severity of the plantar callosities of both feet, the current nature and likely etiology of the Veteran's bilateral knee disability and whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The claims file as well as a copy of this remand must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. (a) Based on the examination and review of the record, the examiner should identify all manifestations (orthopedic and neurological) of the Veteran's service-connected plantar callosities of both feet, to include the extent of functional loss of use due to pain, incoordination, weakness, pain on flare-ups and fatigability with use. If any neurological manifestations are found, the examiner should identify any affected nerve, and state the severity of the impairment of the nerve affected. (b) The examiner should describe in detail the scars on the left foot related to surgeries performed in 2007 and note whether they are tender, superficial, unstable, poorly nourished, productive of repeated ulceration, or painful on objective demonstration. (c) Regarding the knees, the examiner is requested to answer the following questions based on the examination and review of the record: (i) Is it at least as likely as not (50 percent or higher degree of probability) that the current bilateral knee disability was caused by any of his service-connected plantar callosities of the right or left foot? (ii) If the answer is no, is it at least as likely as not (50 percent or higher degree of probability) that the Veteran's service-connected plantar callosities of the right or left foot aggravated his bilateral knee disability? The physician is advised that "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If any aggravation is present, the physician should indicate, to the extent possible, the approximate level of severity of the hypertension (i.e., a baseline) before the onset of the aggravation. (d) the examiner should specifically state whether the Veteran's service-connected disabilities, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 5. Then, readjudicate the Veteran's claims on appeal with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claims remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case 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 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). _________________________________________________ M. E. LARKIN 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).