Citation Nr: 1118440 Decision Date: 05/13/11 Archive Date: 05/17/11 DOCKET NO. 09-20 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals, fracture of calcaneal bones of the right foot with degenerative spurring. 2. Entitlement to a rating in excess of 30 percent for residuals, fracture of calcaneal bones of the left foot with degenerative spurring. 3. Whether a notice of disagreement (NOD) was timely filed regarding the issue of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The Veteran had active service from March 1979 to November 1987. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the Regional Office (RO) in Pittsburgh, Pennsylvania. In November 2009, the Veteran submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2010). 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 In Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." The Board observes that the Veteran's last VA examination for compensation and pension purposes that considered his bilateral residuals, fracture of calcaneal bones of both feet with degenerative spurring, was performed in October 2006-well over 4 years ago. Since that time, the record reflects that the Veteran underwent foot surgery in April 2007. The Veteran's representative has asserted that the October 2006 VA examination report does not reflect the current symptomatology of the Veteran's foot disorders. Due to the passage of time, performance of surgery, and competent assertions by the Veteran concerning his feet, the Board agrees; thus, the Board finds that the Veteran should be afforded a new VA foot examination for compensation and pension purposes. Additionally, the Board notes that, in March 2009, the RO sent the Veteran a letter informing him that his recent submission to the RO could not be considered an NOD regarding a prior denial of entitlement to a TDIU, as the submission was not timely. On March 30, 2009, the Veteran's representative filed an NOD with the determination that the Veteran's prior NOD regarding the issue of a TDIU was not timely. However, the RO has yet to issue a SOC with respect to that determination, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should issue an SOC on the issue of whether an NOD was timely filed regarding the issue of entitlement to a TDIU. It should also inform the Veteran of the requirements to perfect an appeal with respect to this issue. 2. If the Veteran perfects an appeal with respect to this issue, the RO or the AMC should ensure that all indicated development is completed before the case is returned to the Board. 3. The RO or the AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers who treated the veteran for his bilateral foot disorder. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 4. After all available records have been obtained and associated with the claims file , the Veteran should be scheduled for a VA feet examination to evaluate the current severity of the residuals, fracture of calcaneal bones of both feet with degenerative spurring. The entire claims folder must be made available to the physician for review in conjunction with the examination and should be so documented in the examination report. All tests and studies that the physician deems necessary should be performed. The examination must be conducted following the protocol in VA's Disability Worksheet for VA Feet Examinations, revised April 20, 2009. The physician should provide an accurate and fully descriptive assessment of the Veteran's right and left foot disabilities. The physician should include a complete rationale for the findings and opinions expressed. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations (to include 38 C.F.R. § 3.321(b)). If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ WAYNE M. BRAEUER 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).