Citation Nr: 1301641 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 06-24 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected left foot plantar fascitis. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right foot plantar fascitis. 3. Entitlement to a disability rating in excess of 20 percent for service-connected low back disability. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD James Alsup, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to February 1992. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that continued assigned 10 percent disability ratings for service-connected bilateral plantar fascitis and a 20 percent disability rating for service-connected lumbar spine disability. The Veteran disagreed and perfected an appeal. In decisions dated November 2010 and September 2011, the Board remanded the claims for further evidentiary development. 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 Bilateral foot disabilities In addition to service-connected plantar fascitis, the Veteran has been diagnosed by a VA examiner in a March 2011 report with hallux valgus of both feet, and diagnosed with bilateral pes planus by a November 2010 VA examiner. The Veteran has undergone surgeries on both feet. In April 2011 she underwent an Austin bunionectomy of the right foot and review of Virtual VA records shows that she underwent a bunionectomy for the left foot In February 2012. The surgical reports for those procedures indicate that surgical scars were left. VA medical records included in the Veteran's Virtual VA folder after February 2012 show that she has repeatedly sought treatment for increased pain of both ankles. Finally, review of the Veteran's service treatment records shows that she was first diagnosed with bilateral pes planus during service. See July 26, 1979, x-ray report. In addition, service treatment records for 1979 and 1980 include numerous complaints of and treatment for bilateral lower extremity pain. The Veteran's symptoms are primarily complaints of pain, tenderness and limited motion of the ankles and feet. It is unclear, however, what symptoms are caused by what diagnosed disorder. Moreover, the evidence includes a current diagnosis of pes planus and a diagnosis during service of pes planus. There is, however, no medical opinion regarding whether it is at least as likely as not that the currently manifested pes planus is related to the Veteran's active duty service. With regard to hallux valgus, the Veteran's service treatment records include physical profiles indicating that the Veteran was required to wear soft shoes and had limited physical fitness requirements at points during her active duty. Although service treatment records do not include a diagnosis of bilateral hallux valgus, the issue of service connection for the conditions is raised by the evidence. Thus, the Board reluctantly remands the claims for further development to determine whether it is at least as likely as not that bilateral pes planus is related to the Veteran's service, and whether it is at least as likely as not that the Veteran's hallux valgus conditions are related to service or are related to a service-connected disability. The Board further observes that because the symptoms and conditions appear to be inextricably intertwined, further development is necessary before the claims at issue can be adequately adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Low back disability The Veteran seeks a disability rating in excess of 20 percent for her service-connected spine disability. The Veteran was examined in October 2011 for her spine disability. Since that examination, the Veteran had a new spine x-ray taken in July 2012 that is included in the Veteran's Virtual VA claims folder. The July 2012 evidence was not listed in the July 2012 supplemental statement of the case. In addition, the evidence was not included in the discussion found in the November 2012 brief filed by the Veteran's service representative and there is no indication that the Veteran intended to waive first consideration by the agency of original jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). TDIU The Veteran told the October 2011 VA examiner that her low back disability prevented her from sitting for long periods. She further stated that in her job as a customer service representative, she is required to sit for long periods and that her supervisor has counseled her when she gets up to walk around to relieve her back pain. Moreover, the Veteran was service-connected for an acquired psychiatric disorder in a December 14, 2012 rating decision that evaluated the disability as 50 percent disabling and which was described to affect her employment. Ordinarily, a claim raised during the adjudication of an appeal on another issue would be referred to the agency of original jurisdiction for appropriate evidentiary and procedural development. However, the question of total disability rating due to service-connected disabilities (TDIU) entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based upon the disability or disabilities that are the subject of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Because the increased rating claims require further development, the TDIU claim is not ripe as it is inextricably intertwined with the increased rating issues. The RO should develop the TDIU claim in conjunction with the development of the increased rating claims as the evidence is currently insufficient to allow adjudication of the issue. Accordingly, the case is REMANDED for the following action: 1. Ensure all VA treatment records for the Veteran are included in the Veteran's VA claims folder including those from October 2011 to the present. 2. Schedule the Veteran for a medical examination by an appropriate VA examiner who should review the Veteran's VA claims folder. The examiner should provide a diagnosis and description of each separate disorder of the bilateral feet manifested by the Veteran. To the extent practicable, the examiner should describe the symptoms caused by each disorder. If symptoms of pain or other symptom are attributable to more than one disability, the examiner should make that clear in the examination report. The examiner should provide an opinion whether it is at least as likely as not that the Veteran has a pes planus condition of both feet or either foot that is related to the condition noted during the Veteran's active duty service. The examiner should further provide an opinion whether it is at least as likely as not that the Veteran's bilateral hallux valgus conditions were incurred during or aggravated during her active duty service. In the alternative, the examiner should provide an opinion whether it is at least as likely as not that the Veteran's bilateral hallux valgus conditions were caused or aggravated beyond natural progression by a service-connected disability. The examiner should provide a description of the effect any service-connected foot disability has on the Veteran's ability to follow substantially gainful employment. The examiner should provide an explanation for each opinion offered and should include reference to clinical data where appropriate. 3. Schedule the Veteran for a medical examination by an appropriate VA medical examiner who should review the Veteran's VA claims folder. The examiner should provide a description of the nature and extent of the Veteran's service-connected low back disability and include a description of the effect that the disability has on the Veteran's ability to follow substantially gainful employment. 4. Ensure the foregoing development is fully completed and complete any other development deemed necessary, then readjudicate the Veteran's claims including the claim for TDIU. If any issue on appeal remains denied, prepare a supplemental statement of the case and, if otherwise in order, return the Veteran's VA claims folder to the Board. 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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).