Citation Nr: 1310828 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-09 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected bilateral pes planus (flat foot). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2009 the Veteran testified before a Veterans Law Judge (VLJ) at the Central Office in Washington, D.C. In April 2010, the Board remanded the case for additional development. In a February 2013 letter, the Board informed the Veteran that the VLJ who conducted the hearing was no longer employed by the Board, and indicated that he was entitled to another hearing. The Veteran responded in a signed, March 2013 statement that he did not wish to attend a second Board hearing. Accordingly, the Board will proceed with the consideration of his case. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a total disability rating based on individual unemployability (TDIU) will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that the Veteran may be unemployable due to symptoms of his service-connected bilateral pes planus, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. 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 issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran's bilateral pes planus has been manifested by inward bowing of the tendo achillis of the right foot, accentuated pain on use and manipulation that is unimproved by orthotics, characteristic callosities, and swelling on use, without objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, resulting in no more than severe bilateral flatfoot. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating of 30 percent for bilateral pes planus have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA treatment records have been obtained and considered. In April 2010 the Board remanded the claim, directing that the Veteran be provided with a VA examination to determine the current degree of severity of the Veteran's service-connected bilateral pes planus. Such examination took place in May 2010. The Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (where there is substantial compliance with the Board's remand instructions a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was provided with VA examinations in February 2007 and May 2010. The Board finds that the examinations are adequate in order to evaluate the Veteran's service-connected bilateral pes planus as they include clinical interviews with the Veteran, review of the claims file, and physical examination. The Veteran has not asserted, nor does the record show, that his bilateral pes planus has worsened in severity since the most recent examination in 2010. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his higher initial rating claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits, specifically identifying the issue on appeal and the Veteran's current rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. He asked specific questions regarding the location, dates, and providers of the Veteran's care. He also asked questions about specific symptoms and whether they have worsened. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Higher Rating Claim Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A. Bilateral pes planus The Veteran is service-connected for bilateral pes planus that is currently rated 10 percent disabling under 38 C.F.R. § 4.71a, DC 5276. He contends that for the entire appeal period his bilateral pes planus has been more severe than the currently assigned rating and that he is entitled to a higher initial rating. DC 5276 provides a 10 percent evaluation for moderate bilateral or unilateral acquired flatfoot where the weight-bearing lines are over or medial to the great toes, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A 20 percent or 30 percent evaluation is warranted for severe unilateral or bilateral (respectively) acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, characteristic callosities. A 30 percent or 50 percent rating is warranted for pronounced unilateral or bilateral (respectively) acquired flatfoot manifested by 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. Following a review of the relevant evidence of record, which includes VA treatment records, the Veteran's lay statements, and February 2007 and May 2010 VA examination reports, the Board concludes that the Veteran's bilateral pes planus warrants an initial rating of 30 percent, but no higher, effective May 31, 2006. The Board finds that, for the entire appeal period, bilateral pes planus is manifested by inward bowing of the tendo achillis of the right foot, accentuated pain on use and manipulation that is unimproved by orthotics, characteristic callosities, and swelling on use, without objective evidence of marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the tendo achillis on manipulation, resulting in no more than severe bilateral flatfoot. The 10 percent rating contemplates some of this symptomatology; namely the May 2010 finding of inward bowing of the tendo achillis of the right foot, and pain on use and manipulation noted throughout the appeal period. However, the Board finds that the Veteran's overall disability picture since the date of service connection has been more severe than that contemplated by a 10 percent rating. The Veteran exhibits additional symptomatology, including that more closely approximates the symptoms described in a 30 percent rating. Based on the evidence of record, the Board finds that the Veteran's bilateral pes planus results in severe bilateral flatfoot. A 30 percent evaluation is warranted for severe bilateral acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, characteristic callosities. While there is no objective evidence of marked deformity such as pronation or abduction, both VA examiners noted pain on use, palpation, and manipulation. At his August 2009 hearing the Veteran testified that he had large callous formation on the heels and balls of both feet that he had to keep filed. The May 2010 VA examiner noted minimal calluses. The Board finds that evidence is sufficient to establish characteristic callosities during the appeal period. With respect to other symptoms indicative of a 30 percent rating, the Veteran testified at his hearing that his feet swelled on use. He also reported a history of swelling on use to both VA examiners. VA treatment records show notations of "no edema" in January 2007 and March 2007, and December 2009. However, there is also a notation of "pedal edema" in a December 2007. The Veteran is competent to report the symptom of swelling. Layno. Moreover, given the consistency of his reports and the fact that they are supported by the December 2007 treatment record, the Board finds his reports of swelling to be credible. While his feet may not have been swollen at each of his VA appointments, the lack of observable swelling on any given day does not render the Veteran's reports not credible. The Board finds that evidence is sufficient to establish swelling on use during the appeal period. As to accentuated pain on use, VA treatment records and VA examinations show he has consistently complained of pain throughout the appeal period. Ranging from a 7 out of 10 (7/10) to an 9/10, his reports of pain noted in records and examinations dated August 2006, January 2007, February 2007, March 2007, August 2009, September 2009, December 2009 and May 2010. The Veteran is competent to report symptoms of pain. Layno. Moreover, given the consistency of his reports throughout the appeal period and the objective evidence of pain, the Board finds his reports of pain to be credible. Pain was objectively observed on palpation or manipulation in January 2007, December 2009, and May 2010. The pain is described by the Veteran and by various medical professionals as constant and severe. At the February 2007 VA examination, there was difficulty with prolonged standing and walking. At his August 2009 hearing he testified that he used a cane daily every time he walked, and had functional limitations of standing for five to ten minutes and walking for ten to twenty feet. His pain was at a 9/10 whether he was walking or sitting, and was only relieved by immobilization, elevation, and muscle relaxers. A VA treatment record dated September 2009 shows he was still using the cane and had pain "all the time." In December 2009 he continued to use the cane and reported that the pain was constant at 7/10-8/10 even when not weight-bearing. With respect to pain on manipulation and use of the feet, the distinction between a 10 percent and 30 percent disability rating is the adjective "accentuated." Similarly, a 10 percent rating indicates moderate flatfoot, while a 30 percent rating indicates severe flatfoot. In this case, the VA examiners and the Veteran report severe functional limitation and severe pain. The Board finds that this symptomatology more closely approximates "severe" rather than "moderate." Therefore, the Board finds that the preponderance of the evidence shows that the degree of the Veteran's foot pain throughout the appeal period was accentuated on use and manipulation. The Board finds that the Veteran demonstrated most of the symptoms listed under a 30 percent rating, including inward bowing of the tendo achillis of the right foot, accentuated pain on use and manipulation, characteristic callosities, swelling on use. The Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with objective examinations, more nearly approximate the criteria for a 30 percent rating than that of a 10 percent rating. Conversely, the Board finds that the symptoms are not of such a severity to result in pronounced bilateral flatfoot with objective evidence of extreme tenderness of the plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, or marked pronation. With respect to other symptoms indicative of a 50 percent rating, the Board notes that there is no evidence of extreme tenderness of the plantar surfaces of the feet. VA treatment records show plantar pain on palpation in January 2007, moderate bilateral plantar tenderness in February 2007, tenderness on the bottom of the feet in March 2007, and tenderness on the soles of the feet in May 2010. The Board finds that the Veteran's plantar tenderness is moderate at most and therefore not sufficiently extreme to warrant a 50 percent rating. The Veteran has indicated a lack of relief from orthotics. However, the Board finds that his bilateral pes planus symptomatology on the whole does not more nearly approximate a 50 percent rating. Therefore, the Board finds that the Veteran is not entitled to a higher rating under the Schedule. The Board has also considered whether the Veteran's service-connected bilateral pes planus would be more appropriately rated pursuant to DC 5284 (other foot injuries.). See VAOPGCPREC 9-98 (DC 5284 is a more general DC under which a variety of foot injuries may be rated). DC 5284 has a maximum disability rating of 30 percent for severe injuries. The assignment of a particular DC is completely dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a DC by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Court has referred to "the canon of interpretation that the more specific trumps the general." See Zimick v. West, 11 Vet. App. 45, 51 (1998); Kowalski v. Nicholson, 19 Vet. App. 171 (2005). With regard to the higher rating claim before the Board specific to bilateral pes planus, DC 5276 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (pes planus) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. Significantly, the Board finds that the less specific and more general rating code, DC 5284, pertains to "foot injuries." There is no evidence that the Veteran's bilateral pes planus is the result of a foot injury. Therefore, because there are specific diagnostic codes to evaluate pes planus, consideration of other diagnostic codes (particularly DC 5284) for evaluating the disability is not appropriate. 38 C.F.R. § 4.20. Diagnostic Codes 5277 through 5283 apply to other disabilities of the foot, such as weak foot (DC 5277), claw foot (DC 5278), metatarsalgia (DC 5279), hallux valgus (DC 5280), hallux rigidus (DC 5281), hammer toe (DC 5282) and malunion or nonunion of tarsal or metatarsal bones (DC 5283). The Board has considered whether these DCs are applicable, however, the Veteran is not service-connected for any of these disabilities. The Veteran does have hallux valgus bilaterally, diagnosed by x-ray in January 2007, but that disability has not been service-connected. Moreover, DC 5280 provides a 10 percent maximum evaluation only when there has been either an operation with resection of metatarsal head or when the disability is so severe as to be the equivalent to amputation of the great toe. The evidence does not show either of these conditions. Therefore, higher ratings cannot be assigned pursuant to these DCs. In sum, the Board finds that the Veteran is entitled to an initial rating of 30 percent, but no higher, for his bilateral pes planus beginning May 31, 2006. The preponderance of the evidence is against the assignment of any higher rating. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Other considerations The Board has considered whether staged ratings are appropriate for the Veteran's service-connected disabilities. However, the Board finds that his overall symptomatology has been stable throughout the period of the appeal. Therefore, staged ratings are not warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. His bilateral pes planus is characterized by inward bowing of the tendo achillis of the right foot, accentuated pain on use and manipulation that is unimproved by orthotics, characteristic callosities, swelling on use, and moderate plantar tenderness. These manifestations are contemplated in the applicable rating criteria. The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his descriptions of pes planus symptomatology are consistent with the degrees of disability addressed by such evaluations. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of an extraschedular rating is not warranted. The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating. Rice, supra. As the issue of TDIU is addressed in the REMAND, it need not be discussed here. ORDER Entitlement to an initial rating of 30 percent for bilateral pes planus is granted effective May 31, 2006, subject to the law and regulations governing payment of monetary benefits. REMAND The record shows that the Veteran is not working and the evidence suggests that he may be unemployable due, at least in part, to his bilateral pes planus. Specifically, he asserts that his bilateral foot symptoms, including pain and limited ability to walk and stand, rendered him unable to continue his work as a security guard and he has been unemployed ever since. A December 2009 statement from his VA primary care physician states that in his opinion the Veteran was not physically capable of performing a full eight-hour work day (including sedentary occupations) since the onset date of his disabling pain. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. Rice. Here, the Veteran has asserted that he is unemployed due to his service-connected disability, and evidence in the claims file suggests he may have been laid off or forced to retire because of occupational limitations related to his service-connected disability. The Board notes that the issue of entitlement to TDIU was denied by the RO in a September 2007 rating decision. However, the Veteran's claim for TDIU is part of his claim for a higher rating. Rice. Moreover, in an April 2007 statement, the Veteran specifically raised claims for entitlement to service connection for 1) chronic headaches and 2) "chronic illness." These two issues have not been adjudicated by the AOJ. Further, in a January 2013 Informal Hearing Presentation, the Veteran, through his representative, raised five other issues that have not been adjudicated by the AOJ. He raised the issues of reopening claims for entitlement to service connection for 1) left knee disability; 2) back condition; and 3) acquired psychiatric disorders (to include depression, bipolar disorder, and posttraumatic stress disorder). He also raised the issues of two new claims for entitlement to service connection for: 1) gastroesophageal reflux disease; and 2) bilateral ankle condition. Thus, a decision by the Board on the Veteran's TDIU claim would, at this point, be premature. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.). These seven issues would generally be referred to the AOJ for consideration in the first instance. However, adjudication of these service connection claims could impact the TDIU claim. The service connection claims are inextricably intertwined with the TDIU claim being remanded and in the interest of fairness to the Veteran and efficient usage of VA resources, the Board will also remand these seven service connection claims for appropriate development and adjudication. Tyrues. The remand of the claims raised in the April 2007 statement and January 2013 Informal Hearing Presentation for initial development and adjudication is wholly consistent with the Federal Circuit's observation in Smith v. Shinseki, 647 F.3d 1380 (Fed. Cir. 2011) that no law or regulation precludes VA from providing additional assistance in developing a claim when it is deemed appropriate. See 38 U.S.C.A. § 5103A(g) (West 2002); see also Savage v. Shinseki, 24 Vet. App. 259, 268-71 (2011). Accordingly, the case is REMANDED for the following actions: (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. Provide the Veteran with appropriate notice of the evidence and information needed to establish entitlement to (A) the seven service connection claims; and (B) a TDIU. Notice should include VA's and the Veteran's responsibilities to provide evidence and information in support of those claims. Allow an appropriate amount of time for response and associate the notification with the claims file. 2. Obtain any outstanding VA treatment records related to the Veteran's pes planus dated since January 2010. Also obtain any identified VA treatment and/or hospitalization records related to the seven service connection claims. All development efforts and any negative response(s) should be associated with the claims file. 3. Request that the Veteran identify all sources of private treatment, hospitalization and evaluation for pes planus and the seven service connection claims, at any time since separation from service. Then the RO should take appropriate steps to attempt to obtain the records utilizing the provided information. In light of the changes to 38 U.S.C.A. § 5103A(2)(B), the RO must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile. All development efforts and any negative response(s) are to be associated with the claims file. 4. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge and/or were contemporaneously informed of 1) his symptomatology relating to the seven service connection claims, to include any possible relationship to military service or service-connected disability, and 2) the effect of his pes planus or claimed disabilities on his ability to work. He should be provided an appropriate amount of time to submit this lay evidence. 5. After the aforementioned development has been completed, schedule the Veteran for appropriate VA examination(s) as to the seven service connection claims. The examiner(s) must state whether it is as likely as not that (a) the conditions had their onset in service or are related to the Veteran's military service; and (b) the conditions are related, at least in part, to any service-connected disability(ies). The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner(s). If the examiner(s) does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner(s) for review. The provided examination report(s) must reflect consideration of both the medical and lay evidence of record. All tests deemed necessary by the examiner(s) must be performed. 6. After the above development is complete, schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to determine whether it is at least as likely as not that he is unable to work due to his service-connected disabilities. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disability(ies) render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 7. Upon completion of the aforementioned development efforts, the RO must adjudicate in the first instance the Veteran's seven service connection claims. 8. Then, adjudicate the appeal for a TDIU, with consideration of all evidence of record. If the benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs