Citation Nr: 1301585 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-08 466A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating in excess of 50 percent for bilateral plantar calluses and hammer toes, post-operative. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service from February 1970 until November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which continued the Veteran's 50 percent disability rating for plantar calluses and hammer toes, bilateral, post-operative. The Board notes that, during the course of the appeal, the Veteran also filed several claims for temporary total evaluations for convalescence following foot surgeries. In a February 2009 rating decision, the RO granted a temporary total evaluation for the period from April 18, 2008 until October 1, 2008. In a December 2011 rating decision, the RO also granted a temporary total evaluation for the period from March 18, 2011 until August 1, 2011. In this regard, the Board notes that, in the December 2011 rating decision, the Veteran was advised that the award of his temporary total evaluation through August 1, 2011, was considered a full grant of his appeal regarding his claim of entitlement to an extension of the temporary total evaluation. Therefore, such issue is not currently before the Board. In a December 2010 report of contact, the Veteran filed a claim for a temporary total evaluation due to the removal of ingrown toenails in November and December of 2010. That issue has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The Veteran testified before a Decision Review Officer at the RO in March 2010 and the undersigned Veterans Law Judge at a video-conference hearing in March 2012. Transcripts of both hearings are associated with the claims file. At the time of his hearing, he submitted additional evidence and waived RO consideration of such evidence. The Board also notes that, since the issuance of the April 2011 supplemental statement of the case, additional evidence had been received and the Veteran waived RO consideration of all such evidence in a December 2011 communication. Therefore, there is no prejudice in the Board reviewing this evidence in the first instance. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal, other than additional VA medical records, which the Veteran waived RO consideration of in December 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). During his March 2012 Board hearing, the Veteran reported that he has numbness in his big toes. In his October 2007 VA examination, the Veteran had similarly reported numbness at the tips of all his left toes, but not his right foot. In his October 2009 VA examination, he complained that his feet always feel cold and complained of not having feeling in the toes of his right foot and the four lesser toes of the left foot. He also reported that the left hallux felt "tingly". In the February 2011 VA examination, he reported that both his feet were "numb and have no feeling". In a January 2002 VA neurology outpatient note, a VA medical provider noted that the Veteran had minimal neuropathic symptoms, perhaps due to partial entrapment of the left peroneal nerve at the knee. Although the Veteran has received numerous VA examinations for his feet, none of those examiners addressed the question of whether the Veteran has a separate neurological disability of the feet. Given the Veteran's numerous reports of neurological problems of the feet, further evaluation is needed to determine whether the Veteran's right and/or left foot warrants a separate evaluation for neurological manifestations. Moreover, the Veteran has not been afforded a VA examination since February 2011, which pre-dates his most recent surgery. Therefore, the Board finds that a new VA examination is necessary so as to assess the current nature and severity of the Veteran's bilateral foot disability, to include appropriate findings so as to allow the AOJ to consider whether a separate disability rating for neurological impairment is warranted, consistent with 38 C.F.R. § 4.124a for diseases of the peripheral nerves (Diagnostic Codes 8520 to 8530), with consideration of the appropriate code section for the nerve involved. The Board also notes that the last VA medical records associated with the claims file are dated in December 2011 and that the record indicates that the Veteran receives continuing treatment from VA. Therefore, while on remand, VA treatment records from the North Little Rock, Arkansas, VA Medical Center dated from December 2011 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should obtain VA treatment records from the Central Arkansas Veterans Healthcare System dated from December 2011 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination to determine the current extent and severity of his bilateral plantar calluses and hammer toes, to include any neurological impairment associated with such disability. The entire claims file and a copy of this Remand must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examiner should identify the nature and severity of all manifestations of the Veteran's bilateral plantar calluses and hammer toes, to include any neurological impairment found to be present. In this regard, the examiner's findings should specifically include: (a) Is neurological impairment part of the service-connected bilateral plantar calluses and hammer toes, post operative? (b) If so, please specify: (1) the peripheral nerve involved and (2) the level of severity of such impairment for each foot. In this regard, the examiner should specifically consider the Veteran's reports of numbness and tingling. The examiner is also requested to address the impact that the Veteran's bilateral foot disability has on his employability, to include whether it renders him unemployable. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, including consideration of whether a separate disability rating is warranted for neurological impairment of the bilateral plantar calluses and hammer toes, post-operative. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ A. JAEGER 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) (2012).