Citation Nr: 1035633 Decision Date: 09/21/10 Archive Date: 09/28/10 DOCKET NO. 06-16 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for plantar fasciitis and plantar calcaneal heel spur syndrome of the right heel. 2. Entitlement to a disability rating higher than 10 percent for plantar fasciitis and plantar calcaneal heel spur syndrome of the left heel. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Tiffany Sykes, Associate Counsel INTRODUCTION The Veteran had active military service from August 1992 to July 1999. This appeal to the Board of Veterans' Appeals (Board) is from a December 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran has since relocated to Alabama and, consequently, jurisdiction over his claims was transferred to the RO in Montgomery, Alabama. As support for his claims, the Veteran and his wife testified at a videoconference hearing in July 2010 before the undersigned Veterans Law Judge of the Board. Because they require further development, the Board is remanding the claims to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND During his recent July 2010 videoconference hearing, the Veteran indicated he has been unemployed since March 2005 and, consequently, receiving disability benefits from the Social Security Administration (SSA), partly as a result of conditions not at issue in this appeal, but also partly on account of those that are. And when, as here, VA is put on notice of the existence of possibly relevant SSA records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2), (c)(3); see also Golz v. Shinseki, No. 09-7039 (Fed. Cir.) (Jan. 4, 2010); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); Lind v. Principi, 3 Vet. App. 493, 494 (1992). Having said that, the Veteran already has a combined 100 percent schedular rating for his service-connected disabilities - which, obviously, is the highest possible rating when also considering his several disabilities that are not at issue in this appeal. He has had this combined 100 percent schedular rating effectively since November 22, 2005, the year he last worked. On June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99, which addressed questions related to whether a claim for a total disability rating based on individual unemployability (TDIU) may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities. Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability or disabilities rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). But in view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in that OGC precedent opinion, the General Counsel recently took action to withdraw that prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99. Here, though, the Veteran already has been receiving SMC effectively since November 22, 2005, so effectively since being awarded the 100 percent schedular rating for the combined effect of his service-connected disabilities. Moreover, although he filed a TDIU application (VA Form 21-8940) in August 2009, he has since withdrawn this claim in January 2010. See his VA Form 21- 4138. Accordingly, the claims for higher ratings for the bilateral plantar fasciitis and calcaneal heel spur syndrome are REMANDED for the following additional development and consideration: 1. Obtain the Veteran's SSA records, including all medical records that formed the basis of any decision rendered by that agency. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2), (e)(1). 2. Then readjudicate the claims for ratings higher than 10 percent for the bilateral plantar fasciitis and calcaneal heel spur syndrome in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ KEITH W. ALLEN 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).