Citation Nr: 1304644 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-36 125A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for residuals of a bunionectomy of the right great toe, to include osteoarthritis, osteotomy of the fifth right toe, pain, and surgical scars. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from April 1984 through March 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which among other issues, granted service connection for the Veteran's right foot disability, effective April 1, 2009, and assigned a 10 percent initial disability rating. Later that month, the Veteran filed a Notice of Disagreement (NOD) in which she contested the assigned initial disability rating. After a Statement of the Case (SOC) was issued in March 2010, the Veteran perfected her appeal in a September 2010 statement which was accepted by VA as her substantive appeal. In her substantive appeal, the Veteran did not indicate whether she wished to schedule a hearing before a Board member. In a June 2011 letter VA notified the Veteran that she had 90 days from the date of that letter to request a personal hearing, neither the Veteran nor her representative requested that such a hearing be scheduled. 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 The Board notes that additional pertinent records have been added to the Veteran's Virtual VA paperless file. This evidence was received without a waiver of the Veteran's right to have evidence considered as an initial matter by the RO. See 38 C.F.R. §19.9. On remand, the RO should consider this additional information. In addition to the foregoing, a September 2009 VA treatment records notes that the Veteran was being seen by an "outside podiatrist" for foot pain. On remand, the RO should make appropriate attempts to obtain any outstanding treatment records. Further, the record reflects that the Veteran's last compensation and pension examination addressing the issue on appeal was conducted in December 2010. Since that examination, the Veteran has received additional VA treatment for ongoing bilateral foot problems. A May 2012 treatment record notes that she had received recent steroid injection on his right foot. Her pain was described as constant especially when standing for long periods. As it is unclear if the Veteran's service connected right foot disabilities have increased in severity, the Veteran should be afforded a new examination addressing the severity of her service connected right foot disabilities. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain all VA records of treatment or evaluation for right knee disability since September 2012. The AMC/RO should also ask the Veteran to identify all additional sources of treatment or evaluation she has received for her right knee and foot disability since March 2009 and secure copies of complete records of the treatment or evaluation from all sources appropriately identified. For any records the AMC/RO cannot locate, it must specifically document the attempts that were made, and explain in writing why further attempts to locate them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be afforded a VA orthopedic examination to assess the current severity of her residuals of a bunionectomy of the right great toe, to include osteoarthritis and oseteotomy of the fifth right toe. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. In accordance with the latest worksheets for rating foot disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of any disability due to her bunionectomy of the right great toe and osteotomy of the fifth right toe. If other right foot disorders are diagnosed, the examiner must carefully differentiate other pathology. The examiner should attempt to distinguish objective pathology from any functional pathology. The examiner should be asked to indicate whether the severity of the Veteran's service-connected right foot disabilities are most consistent with "moderate," moderately severe," or "sever" foot disability. Further, the examiner should indicate whether the overall severity of the Veteran's disability is the functional equivalent of loss of use of the foot. A complete rationale for any opinion expressed must be provided. 3. The Veteran is to be notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiners document their consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim must be readjudicated. All applicable laws and regulations, and all pertinent evidence received, to include in the electronic claims file, should be considered. If any benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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). _________________________________________________ DAVID L. WIGHT 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).