Citation Nr: 1305455 Decision Date: 02/14/13 Archive Date: 02/21/13 DOCKET NO. 08-09 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for a bilateral foot disorder, to include flexible pes planus with plantar fasciitis (heel spur syndrome). 2. Entitlement to an initial compensable rating for a right ankle disorder prior to August 18, 2010, and entitlement to a rating in excess of 10 percent thereafter. 3. Entitlement to an initial compensable rating for a left ankle disorder prior to August 18, 2010, and entitlement to a rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from October 1962 to November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which established service connection for a bilateral foot disorder, evaluated as 30 percent disabling, as well as disability of the right and left ankle, both of which were evaluated as noncompensable (0 percent disabling). These ratings were all effective as of February 7, 2000. The RO subsequently assigned ratings of 10 percent for both of the service-connected ankle disorders, effective as of August 18, 2010. In July 2010, the Board remanded this case for further evidentiary development to include a new VA medical examination. The Board subsequently denied the Veteran's claims in a decision dated January 2011. The Veteran appealed this decision to the United States Court of Veterans Appeals (Court), and in October 2012, the Court granted a joint motion to remand the issues of entitlement to increased disability evaluations for a bilateral foot disorder and a bilateral ankle disorder back to the Board. The Board's denial of TDIU benefits was affirmed, but the Court did note that this issue could resurface in the future if it is determined that higher disability evaluations are in fact warranted. The issue of entitlement to an effective date prior to February 7, 2000, for the establishment of service connection for his bilateral foot and ankle disabilities was raised by the Veteran in a November 2012 statement. These issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran is presently service-connected for a bilateral foot disorder, flexible pes planus with plantar fasciitis (heel spur syndrome), rated as 30 percent disabling since February 7, 2000. This disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Veteran argued in a November 2012 statement that he was in fact entitled to a 50 percent disability evaluation under Diagnostic Code 5276, because the evidence of record revealed acquired severe flatfeet with marked pronation and medial displacement of the talus head. A 50 percent disability evaluation is warranted when there is evidence of acquired flatfoot with pronounced, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation; not improved by orthopedic shoes or appliances. Id. According to the last VA examination of record from August 2010, the Veteran suffered from moderate functional limitation as a result of his bilateral foot disorder. Alignment of the feet was also deemed to be normal. Finally, it was noted that shoe inserts did in fact help relieve the Veteran's foot pain. Therefore, the Veteran's current allegations that he now meets the criteria for a 50 percent disability would suggest a possible worsening of his bilateral foot disability. Furthermore, the Veteran submitted a statement from his primary care physician dated January 2013. According to this statement, the Veteran's service-connected disability of the feet was alone severe enough to result in unemployability. This is further evidence of a possible worsening. The Veteran is also service-connected for bilateral ankle disabilities. These disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, and have been rated as 10 percent disabling since August 18, 2010. They were rated as noncompensable (0 percent disabling) since February 7, 2000. In his November 2012 statement, the Veteran asserted that he was entitled to a 40 percent rating for bilateral ankle ankylosis under Diagnostic Code 5270. He also seemed to suggest that he was entitled to a separate disability evaluation of 20 percent for bilateral marked limitation of motion of the ankle under Diagnostic Code 5271. However, separate ratings under Diagnostic Code 5270 and 5271 would likely not be permitted, as they are both based on limitation of motion. Finally, he indicated that he was entitled to a disability evaluation of 20 percent under Diagnostic Code 5272 for subastragalar or tarsal joint ankylosis in poor weight-bearing position. The Veteran's most recent VA examination of August 2010 reflects dorsiflexion of the ankles to 10 degrees and plantar flexion to 45 degrees. As such, the Veteran clearly was not suffering from ankylosis at the time of the August 2010 VA examination since his ankles had maintained some range of motion. Therefore, the Veteran's current assertion that he is now suffering from ankylosis of the ankles is evidence of a possible worsening of the Veteran's bilateral ankle disabilities. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran should be afforded the opportunity to appear for a more recent VA examination, since it has been more than 2 years since his last examination and since he provided VA with a statement in November 2012 at least suggesting a worsening of his overall symptomatology. Also, as discussed in the January 2011 Court decision, the examiner assigned to the Veteran's case should also opine as to whether the Veteran's pes planus and plantar fasciitis are entirely separate disabilities, or, whether they are related to one another with similar symptomatology. In other words, do these disabilities result in independent or overlapping symptomatology? As noted by the Court, a July 2004 letter from a physician with the initials P.B. suggests that the Veteran suffers from plantar fasciitis secondary to his acquired flatfoot disability. The December 2006 VA examiner, however, concluded that the Veteran suffered from pes planus with plantar fasciitis. A physician with the initials H.H. also suggested in July 2009 that these were two separate disabilities. The Court concluded that these discrepancies in wording made it unclear as to whether the Veteran was entitled to separate disability evaluations for these conditions. Finally, when describing the severity of the Veteran's bilateral foot disability, the examiner should consider and discuss the November 1962 in-service treatment record describing "marked pronation with medial and downward displacement of the head of the talus, bilateral." As already noted, a 50 percent evaluation is warranted under Diagnostic Code 5276 for acquired flatfoot with "pronounced, marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation; not improved by orthopedic shoes or appliances." 38 C.F.R. § 4.71a. While the November 1962 notation suggests a 50 percent disability evaluation may have been warranted as of this time, it is not presently clear from the current evidence of record whether the Veteran has suffered from this degree of symptomatology at any time during the pendency of this claim. Therefore, when describing the severity of the Veteran's bilateral foot disability, it would aid the Board if the examiner specifically addressed whether there is evidence of marked pronation and/or marked inward displacement. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be scheduled for a VA examination before an appropriate specialist(s) to determine the current level of severity of his service-connected bilateral foot disorder, to include flexible pes planus with plantar fasciitis, and his bilateral ankle disabilities. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's feet and ankles, including limitation of motion. Also, it would greatly assist the Board if the examiner specifically addressed whether there is evidence of marked pronation and/or marked inward displacement of both or either foot. The November 1962 in-service treatment record should be reviewed and discussed when addressing this matter. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner should also opine as to whether the Veteran's bilateral pes planus is a wholly separate condition than his bilateral plantar fasciitis that results in independent symptomatology, or, whether these disabilities are related resulting in overlapping symptomatology. The examiner should explain in detail the underlying rationale for any conclusion reached. Finally, the examiner should opine as to the degree of occupational impairment suffered by the Veteran as a result of his service-connected ankle and feet disabilities. The examiner should consider and discuss the January 2013 opinion of the Veteran's primary care physician when formulating an opinion. A complete rationale must be provided for all other opinions offered as well, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. If the examiner is unable to provide any opinion without resort to mere speculation, then a complete explanation as to why this is the case is required. 2. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ K. A. KENNERLY 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) (2012).