Citation Nr: 1105038 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 05-15 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for tarsal tunnel syndrome of the right foot with history of cold injury for the period prior to October 9, 2003. 2. Entitlement to an evaluation in excess of 20 percent for tarsal tunnel syndrome of the right foot with history of cold injury for the period beginning October 9, 2003. 3. Entitlement to an evaluation in excess of 10 percent for tarsal tunnel syndrome of the left foot with history of cold injury for the period from May 1, 2001 until October 8, 2003. 4. Entitlement to an evaluation in excess of 20 percent for tarsal tunnel syndrome of the left foot with history of cold injury for the period beginning October 9, 2003. 5. Entitlement to an effective date prior to October 9, 2003, for the award of an increased evaluation for tarsal tunnel syndrome of the right foot with history of cold injury. 6. Entitlement to an effective date prior to October 9, 2003, for the award of an increased evaluation for tarsal tunnel syndrome of the left foot with history of cold injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2001 and June 2004 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Boston, Massachusetts. The Veteran moved during the pendency of this appeal and the RO in Winston-Salem, North Carolina now has jurisdiction of 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 The Veteran submitted a timely substantive appeal following the issuance of the May 2010 statement of the case which addressed the issues of increased evaluations for disabilities of the right and left feet. As such, the Board now has jurisdiction of these claims. See 38 U.S.C.A. §§ 7104(a), 7105 (West 2002); 38 C.F.R. § 20.101, 20.200 (2010). Following a review of the record, the Board finds that further development is needed with respect to the issues of entitlement to increased evaluations; it is discussed below. The issues of entitlement to earlier effective dates for increased evaluations must also be remanded at this time because they are inextricably intertwined with the increased evaluation claims on appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). A remand is first necessary to obtain records associated with disability benefit claims filed with the Social Security Administration (SSA) and the Office of Workers' Compensation Program (OWCP) under the Federal Employee Compensation Act (FECA). Pertinent law requires that the VA obtain Federal records such as SSA and Federal workers' compensation records so long as a reasonable possibility exists that the records are relevant to an appeal. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). In the present case, the claims file contains evidence which indicates that the Veteran ceased working in 2003 following an on-the-job injury which involved injury to his back and lower extremities. Thus, the records associated with these other Federal disability benefit claims may include evidence pertaining to his service-connected feet. Id.; see also 38 U.S.C.A. § 5103A(b), (c)(3) (West 2002); 38 C.F.R. § 3.159(c) (2010). Additionally, the Agency of Original Jurisdiction (AOJ) should obtain outstanding records identified by the Veteran and the Board as relevant to the current appeal. See 38 U.S.C.A. § 5103A. In this regard, the VA received an Authorization and Consent to Release Information to the VA (VA Form 21-4142) in February 2004 for a Dr. J.B. Ayers; the Veteran indicated that this physician has been treating his "bilateral tarsal syndrome" since February 2003. The claims file also reflects that the Veteran has sought treatment from the VA for his bilateral foot disability. The most current records show treatment at the VA Medical Center (VAMC) in Fayetteville, North Carolina through August 2010. Since VA treatment records are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, the AOJ should ensure that any VA treatment records generated since August 2010 are obtained. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Finally, the Board finds that the Veteran should be scheduled for another VA examination because although his foot disabilities include residuals of cold injury, none of the VA examinations already of record contain findings which address all of the diagnostic criteria applicable to cold injury residuals. See Schafrath v. Derwinksi, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.2 (2010). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding treatment records from Dr. J.B. Ayers related to treatment for "bilateral tarsal syndrome" since February 2003. If the consent form received in February 2004 is no longer valid, notify the Veteran of this fact and ask that he submit a newly updated release. 2. Obtain copies of any SSA disability benefit determinations as well as any copies of the records on which such determinations were based. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Obtain copies of any OWCP determinations pertaining to a Federal workers' compensation claim filed by the Veteran as well as any copies of the records on which such determinations were based. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 4. Obtain VA treatment records from the VAMC in Fayetteville, North Carolina for the period from August 2010 through the present. A response, negative or positive, should be associated with the claims file. Requests must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. 5. If any Federal or non-Federal records, including those discussed in the paragraphs above, are unable to be located and/or obtained following reasonable efforts, the AOJ should notify the Veteran that these records are not available, explain the efforts made to obtain to the records, describe any further action VA will take regarding the claim, and inform the Veteran that it is ultimately his responsibility for providing the evidence. 6. After any outstanding records have been associated with the claims file, schedule the Veteran for an examination with an appropriate clinician for the purpose of evaluating the current severity of his service-connected bilateral tarsal tunnel syndrome with history of cold injury. The claims file, including a copy of this REMAND, must be made available to the examiner, and the report should reflect that the claims file was reviewed. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should describe all signs and symptoms associated with the Veteran's bilateral tarsal tunnel syndrome with history of cold injury. Specific comment should be provided regarding any current nerve involvement, and the examiner should identify the nerve(s) involved, indicate whether the involvement is best characterized as neuralgia, neuritis, or (in)complete paralysis, and discuss any associated sensory, motor, movement, and other functional impairment. The examiner should also discuss whether the Veteran's cold injury residuals have resulted in any associated arthralgia, numbness, cold sensitivity, tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities. Any range of motion testing should measure and report where pain begins and ends. The examiner should also address any weakened movement, excess fatigability with use, and incoordination, and provide an opinion as to how these factors further limit functional impairment. Finally, the examiner should describe any occupational impairment(s) associated with the Veteran's disabilities and provide an opinion as to whether bilateral tarsal tunnel syndrome with history of cold injury renders the Veteran unemployable. Any opinions provided by the examiner should include a rationale which reflects consideration of both the medical and lay evidence of record: 7. Thereafter, the AOJ should review the claims file to ensure that the foregoing requested development has been completed. In particular, the AOJ should review the examination/opinion report(s) to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AOJ should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completion of the above, and any other development deemed necessary, review the expanded record and readjudicate the issues of increased evaluations for tarsal tunnel syndrome with history of cold injury of the right and left foot and earlier effective dates for the award of increased evaluations for tarsal tunnel syndrome with history of cold injury of the right and left foot. Unless the benefits sought on appeal are granted, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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. 2010). _________________________________________________ ROBERT E. SULLIVAN 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) (2010).