Citation Nr: 1306184 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-13 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for flat feet. 2. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 beyond March 1, 2009, for convalescence following surgery for the service-connected flat foot disability on October 22, 2008. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran also raised the issue of entitlement a total disability rating based on individual unemployability (TDIU). See August 2012 hearing transcript, p. 11. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the claimant. The Court further held that when evidence of unemployability is submitted at the same time that the claimant is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the claim for TDIU is part of the claim for a higher rating and as such, a determination must also be made with respect to this claim. The Veteran also raised the issues of reopening previously denied claims for service connection for a back condition, to include as secondary to flat feet and entitlement to service connection for a neck condition, to include as secondary to flat feet; entitlement to service connection for a bilateral hip condition, to include as secondary to flat feet; and entitlement to service connection for a bilateral knee condition, to include as secondary to flat feet, as well as entitlement to a convalescence rating pursuant to 38 C.F.R. § 4.30 following surgery in December 2009. See statements of the Veteran dated in August 2012 and the hearing transcript at p. 11. These matters have been raised by the record, but have not 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. In August 2012 the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. 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 At his Board hearing, the Veteran testified that he would soon be undergoing surgery on his left foot as it was continuing to cause him pain. He was last afforded a VA examination in April 2009. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's testimony indicates possible worsening of his flat feet, the Veteran should be afforded a new VA examination. Also, a review of the claims file indicates that the Veteran is receiving disability compensation Social Security Administration (SSA) for his flat feet, among other conditions; however, VA has not requested any records from SSA in this regard. It thus appears that SSA may be in possession of relevant outstanding records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that only relevant SSA records must be sought). Appropriate action to obtain all records associated with any SSA claim must be accomplished before adjudication can be made on the merits. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Upon remand of this matter, VA should attempt to obtain the records associated with the appellant's claim for a SSA benefits and associate them with the claims file. The issue of entitlement to a temporary total disability evaluation due to surgical convalescence is inextricably intertwined with the Veteran's claim for an evaluation in excess of 30 percent for flat feet. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (holding that claims are inextricably intertwined when one claim could have a significant impact on a denied claim that is being appealed); see also 38 C.F.R. § 4.30. Hence, adjudication of the issue of entitlement to a temporary total disability evaluation due to surgical convalescence is deferred. Regarding the claim for TDIU, the RO should provide the Veteran with notice pursuant to the Veterans Claims Assistance Act and request that he complete a TDIU claim form. As the cover of the claims folder indicates that the Veteran has a counseling folder, the RO should attempt to associate it with the claims folder. It is noted that the TDIU claim is also inextricably intertwined with the increased rating issue. During the Board hearing, the Veteran stated that he planned to obtain private medical care for his pes planus. On remand, he should be asked to provide or identity any such records. In addition, as the Veteran receives care through VA, any recent VA treatment records not already of record should be obtained. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran as to how he can substantiate his claim for an increased rating on the basis of TDIU and request that he complete a TDIU claim form. 2. Obtain the Veteran's VA counseling and rehabilitation folder. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. Request that the Veteran provide or identify any private medical records pertaining to his pes planus. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Obtain recent VA treatment records that are not already associated with the claims folder or the Veteran's virtual VA record. 5. Appropriate efforts should be made to obtain from SSA the records pertinent to the Veteran's claim for SSA disability benefits. Perform any and all follow-up as necessary, and document negative results. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 6. After the above development has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional, to include a complete physical examination and interview of the Veteran, in order to determine the current severity of his service-connected flat feet. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The examiner should address whether there is marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, which is not improved by orthopedic shoes or appliances. The examiner should also address whether the Veteran has, or had during the pendency of this claim, nerve impairment as a manifestation of the service-connected pes planus with respect to the left foot and, if so, address which nerves are involved and the severity of the disability. See VA treatment records dated in December 2008, February 2009, and December 2009. The examiner should also address whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran is unable to obtain or retain substantially gainful employment due to the service-connected bilateral pes planus, to include as a result of medication taken therefore, and the surgical scar taking into consideration his work experience and education. If the Veteran's service-connected disabilities do not render him unemployable, the examiner should report the type or types of employment in which the Veteran would be capable of engaging with his current service-connected disabilities, given his current skill set and educational background. A complete rationale for any opinion expressed should be provided. 7. Ensure the above development is complete, that the examination report is adequate and then undertake any additional development deemed warranted and readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned 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). _________________________________________________ S. S. TOTH 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).