Citation Nr: 1038060 Decision Date: 10/08/10 Archive Date: 10/15/10 DOCKET NO. 06-22 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an evaluation in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from May 1981 to May 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. 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 Veteran asserts an evaluation in excess of 10 percent is warranted for her service-connected bilateral pes planus. Specifically, she contends she suffers from severe pain and deformity of her feet due to her service-connected condition. See, e.g., April 2004 notice of disagreement, July 2006 substantive appeal. During the development of the instant claim, the Veteran was provided a VA examination in April 2003. The Veteran complained of pain in her lower legs and difficulty finding well-fitting shoes. The VA examination report reflects a diagnosis of bilateral flat feet with normal weightbearing and nonweightbearing alignment of the Achilles tendon. However, the VA examination report does not indicate whether the Veteran's bilateral pes planus is manifested by symptoms of deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, swelling on use and characteristic callosities and, if so, the severity of such symptoms. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2010). As such, a remand is necessary to provide the Veteran with a new VA examination to determine the current severity of her bilateral pes planus. See generally Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). As a final note, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that VCAA notice must include notice regarding the disability rating and the effective date after which the appeal must be readjudicated. The Board notes that the only such notice provided to the Veteran was simultaneous with the issuance of the statement of the case. Thus, on remand, notice regarding the disability rating and effective date should be sent to the Veteran followed by readjudication and issuance of a supplemental statement of the case. Accordingly, the case is REMANDED for the following action: 1. The AOJ should review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the AOJ should ensure that the notification requirements and development procedures contained in the Court's decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) are fully met. 2. Schedule the Veteran for a VA foot examination for the purpose of ascertaining the severity of her service- connected bilateral pes planus. The claims file, including a copy of this REMAND, must be made available to the examiner, and the examination report should reflect that a review of the claims folder was completed. Any indicated diagnostic tests and studies should be accomplished prior to the completion of the examiner's report. The examiner should describe all pertinent symptomatology and findings associated with the Veteran's service-connected bilateral pes planus, including whether the Veteran's pes planus is moderate, severe, or pronounced. The examiner should also specifically comment on whether there is objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and/or characteristic callosities. The examiner should also comment as to whether there is evidence of any of the following due to pes planus that is not improved by orthopedic shoes or appliances: marked pronation, extreme tenderness of plantar surfaces of the feet, and/or marked inward displacement and severe spasm of the tendo achillis on manipulation. Any opinions should be accompanied by a rationale. 3. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MILO H. HAWLEY 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).