Citation Nr: 1234937 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-21 002 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased disability rating for bilateral pes planus with plantar fasciitis, currently evaluated 10 percent disabling. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD V. Chiappetta, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1986 to April 1988. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in part, denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis. The Veteran disagreed with the RO's determination, and perfected an appeal as to this issue. In September 2010, the Veteran testified at a personal hearing, conducted via videoconferencing equipment, which was chaired by the undersigned. A transcript of that hearing has been associated with the Veteran's VA claims folder. In November 2010, the Board remanded the Veteran's increased rating claim for additional evidentiary development. Such was achieved, and the RO readjudicated the claim in an April 2012 supplemental statement of the case (SSOC). The Veteran's claims folder has been returned to the Board for further appellate review. Referred issue As noted in the Board's November 2010 decision, the Veteran has filed a claim for bilateral foot arthritis, to include as secondary to his service-connected bilateral pes planus disability. See the Veteran's April 9, 2010 Statement in Support of Claim. To date, this claim has not been adjudicated by the RO in the first instance. As such, the claim is once again referred to the RO for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board does not have jurisdiction of issues not yet adjudicated by the RO]. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board regrets having to remand this case for a second time. However, after having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the Veteran's claim must be remanded for further evidentiary development. As noted above, the Veteran is claiming entitlement to an increased disability rating for his service-connected bilateral foot disability-namely, pes planus with plantar fasciitis. A 10 percent disability rating has been in effect since the original effective date of service connection, November 8, 1993. The Veteran filed his increased rating claim in July 2005. In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Since the Veteran filed his pes planus increased rating claim in July 2005, the relevant time period under consideration is from July 2004 to the present. The Board notes that during the course of the appeal, on December 18, 2009, the Veteran underwent extracorporeal shockwave therapy on both feet to treat his bilateral pes planus and plantar fasciitis. The Veteran immediately filed a claim for a temporary total (100 percent) evaluation under 38 C.F.R. § 4.30 for his period of convalescence following this procedure, but the RO denied this claim in a February 2010 rating decision, based largely on a finding that this procedure required no surgical incision. The Veteran did not appeal the RO's February 2010 rating decision, and the issue of entitlement to a temporary total rating due to convalescence is not in appellate status. Although the Veteran's claim for a temporary total rating for the time period following his December 2009 procedure is not in appellate status, the Veteran's increased rating claim remains on appeal. As such, adjudication of the Veteran's current appeal must include consideration of whether staged ratings may be assigned at any point during the period under review, to include during the time period following the Veteran's December 2009 shockwave therapy. In this connection, the Board notes that the Veteran's VA physician, Dr. J.P. explained in a January 6, 2010 letter that during the post-operation time frame, the Veteran was to perform very limited weight bearing activity for post-operative healing to occur. Due to post-procedure pain, the Veteran was not expected to be able to perform his regular occupational duties, which require 7 to 8 hours of weight bearing activity on a daily basis. This post-procedure restriction was set in place for a two month period from the December 18, 2009 procedure date. See the January 6, 2010 letter from Dr. J.P. The record includes an insurance form containing Dr. J.P.'s specific instructions for the Veteran to be absent from work for two months for post-operative healing. See the December 22, 2009 Attending Physician's Statement. The Veteran's employer subsequently submitted a letter indicating that the Veteran was eligible for short term disability during the time of his surgery from December 2009 through February 2010, and attendance records showing the Veteran's authorized absence. See the April 13, 2010 statement from the Veteran's employer. The schedular requirements for rating bilateral pes planus, located at 38 C.F.R. § 4.71a, Diagnostic Code 5276 [flatfoot, acquired] take into contemplation the disability's general levels of severity in terms of "mild," "moderate," "severe," and "pronounced," with suggested identifying symptoms characterized under each level to include marked pronation, inward displacement, tenderness, pain on manipulation, swelling, and callosities. Significantly, these schedular criteria do not appear to contemplate the symptoms and severity of the Veteran's condition during the time period he was restricted from weight-bearing activities following his December 2009 shockwave therapy. The Board notes that an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); see also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. However, the Board can address the matter of referral of a disability to appropriate VA officials for such consideration. There is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. See Thun v. Peake, 22 Vet App 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms," to include marked interference with employment or frequent hospitalization. Third, if the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. In this case, as discussed above, the Board is of the impression that the condition of the Veteran's service-connected pes planus with plantar fasciitis following his December 2009 procedure does in fact present an exceptional disability picture that is not adequately contemplated by the existing schedular criteria located under Diagnostic Code 5276. Although the criteria do contemplate symptoms such as pain, swelling, the existence of marked deformity or displacement, and the presence of characteristic callosities, they do not contemplate a disability picture where medical restrictions are necessary, requiring significant limitations on weight-bearing activity. Further, with respect to "governing norms," the Board observes that Veteran's disability picture following his December 2009 procedure did in fact include marked interference with employment, as the Veteran was ordered to remain home from work by his treating physician for a period of two months. See the December 22, 2009 Attending Physician's Statement, referenced above. Based on these observations, and in accordance with 38 C.F.R. § 3.321(b), the Board believes that the Veteran's increased rating claim for pes planus with plantar fasciitis requires referral at this time to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating during the time period immediately following his December 2009 extracorporeal shockwave therapy. The Board makes no intimation at this time as to whether higher ratings for the Veteran's service-connected pes planus with plantar fasciitis may be available on a purely schedular basis at time periods other than immediately following his December 2009 procedure, as the determinations of the Under Secretary for Benefits or the Director of the Compensation and Pension Service may have an impact on such analysis and findings. Indeed, piecemeal adjudication of a veteran's claim is generally to be avoided. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should refer the Veteran's file to the Under Secretary for Benefits or the Director of the VA Compensation and Pension Service for consideration of the Veteran's entitlement to the assignment of an increased disability rating greater than 10 percent for his service-connected pes planus/plantar fasciitis disability on an extraschedular basis, pursuant to the provisions of 38 C.F.R. § 3.321(b), for the time period immediately following his December 18, 2009 extracorporeal shockwave therapy. 2. After receiving a response from the Under Secretary of Benefits or Director of the Compensation and Pension Service, and after completing any additional development deemed warranted, the RO should readjudicate the Veteran's increased rating claim on both a schedular and extraschedular basis, with specific consideration as to whether staged ratings may be appropriately assigned at any time during the period under review. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided a supplemental statement of the case (SSOC) and given an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2011). _________________________________________________ L. M. BARNARD Acting 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) (2011).