Citation Nr: 1303528 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 10-35 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, claimed as sleep apnea. 2. Entitlement to an increased rating for flat feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from November 1993 to March 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran received a videoconference hearing before the undersigned Veterans Law Judge in April 2012. 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 As to the Veteran's claim of entitlement to service connection for insomnia, the Board finds that further development is necessary. Specifically, the Board notes that this claim was made as secondary to the Veteran's service connected flatfoot disability. However, the Veteran's service treatment records do show a diagnosis in March 1996 of insomnia secondary to stress. The Veteran also appears to carry a current diagnosis of depression. While the Veteran did suffer an electrical shock in 2002, subsequent to service, which appears to have caused or contributed to depression and/or PTSD, as the Veteran was found to have insomnia and stress in service, and as he has a current psychiatric disorder, the Board finds, construing liberally the Veteran's claim, that it should be expanded to include a general claim for a psychiatric disorder, and therefore should be remanded for a VA examination to determine whether the Veteran has any current psychiatric disorder related to service or related to any service connected disability. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (holding that VA must construe liberally all submissions by a claimant). As to the Veteran's claim of entitlement to an increased rating for his flat feet, the Board finds that further development is also necessary. Specifically, as noted by the RO in its September 2009 decision, the Veteran does not meet the requirements for an increased rating for his flat feet under Diagnostic Code 5276. Under that code, the next higher evaluation requires findings of severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. There was no evidence of any of these findings in the Veteran's July 2010 VA examination. However, the Veteran has consistently and repeatedly stated, most recently in his April 2012 hearing testimony, that he suffers from constant foot pain with periodic flare ups, which are so severe as to impair his ability to sleep. Although the Veteran is pursuing a separate claim of service connection for a psychiatric disorder and/or insomnia, the Board notes that his contentions also give rise to the possibility that his sleep difficulties are merely a symptom of his service-connected foot disorder. As there is evidence of record that this disability, while not entitled to a higher rating under the schedular criteria, is nevertheless severe, the Board therefore finds that consideration of this claim for extra-schedular consideration is appropriate under 38 C.F.R. § 4.16(b). The Board realizes it cannot assign an extra-schedular evaluation in the first instance under § 4.16(b) or § 3.321(b)(1). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Board may not award benefits under § 4.16(b) or § 3.321(b)(1) in the first instance, it may adjudicate whether a referral to the Under Secretary for Benefits or Director of Compensation and Pension Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the appropriate official has determined that an extra-schedular evaluation is not warranted does the Board have jurisdiction to decide the claim on the merits. In fact, the Court has held that although the Board is precluded from initially assigning an extra-schedular rating, there is no restriction on the Board's ability to review the adjudication of an extra-schedular rating under § 4.16(b) or § 3.321(b)(1) once the Director of C & P determines that an extra-schedular rating is not warranted. Anderson, 22 Vet. App. at 427-28. See also Floyd, 9 Vet. App. at 96-97. In the present case, the Director of Compensation and Pension has not yet made this initial determination, so the Board is making the referral. In conclusion, the Board refers the issue of an increased rating for flat feet to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for any of the issues on appeal. After allowing an appropriate time for response, contact any identified facility, including the VA facility at which the Veteran was most recently treated, to obtain all of his available treatment records. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After the above development has been completed, and the relevant records associated with the Veteran's claims file, please schedule the Veteran for a VA psychiatric examination. All relevant tests and studies should be undertaken. The examiner should note whether any psychiatric disability found is either related to service, or secondary to the Veterans' service connected flat feet. The examiner must provide reasons and bases in support of his decision. The examiner should specifically comment on a March 1996 service treatment record which noted that the veteran had insomnia in service secondary to stress, and on 2002 records which show that the veteran was electrocuted , in offering his opinion. The examiner should also specifically discuss the extent to which the Veteran's sleep problems are attributable to any psychiatric disability. 3. Once the aforementioned development has been completed, the RO must submit the Veteran's claim for an increased rating for his flat foot disability to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). 4. The RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, and after any other development deemed warranted is performed, to include a further VA examination if the RO requests one, the RO must consider all of the evidence of record and readjudicate the flat foot claim on both a schedular basis and an extra-schedular basis under 38 C.F.R. § 4.16(b). The RO must also adjudicate the Veteran's claim for entitlement to service connection for a psychiatric disorder. 6. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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 LANE 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).