Citation Nr: 1312201 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-23 103A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a left knee disability. 2. Entitlement to an initial rating in excess of 10 percent for mild hallux valgus and hammertoes of the right foot. 3. Entitlement to an initial rating in excess of 10 percent for mild hallux valgus and hammertoes of the left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from June 1995 to November 2005. These matters came before the Board of Veterans' Appeals (Board) on appeal from May 2006 and March 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The May 2006 rating decision, in pertinent part, granted service connection and assigned initial 10 percent ratings for residuals of anterior cruciate ligament (ACL) repair, left knee; and hallux valgus and hammertoes of the left foot. Each grant of service connection was effective November 16, 2005. In the March 2007 rating decision, the RO, in pertinent part, granted service connection for right foot mild hallux valgus and hammertoes with pes planus, and assigned an initial 10 percent rating, effective November 16, 2005. The RO also continued the 10 percent rating for left foot hallux valgus and hammertoes with pes planus. The May 2006 rating decision also denied service connection for lumbosacral strain and bilateral elbow fractures with residual pain and loss of motion. The Veteran appealed those issues. However, service connection for lumbar degenerative disc disease with lumbar stenosis was subsequently granted by a rating decision in June 2012 and service connection for bursitis of the bilateral elbows was subsequently granted by a rating decision in October 2012. Therefore, the matters of entitlement to service connection for lumbosacral strain and bilateral elbow fractures have been resolved and are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Additionally, with regard to the right and left foot issues, an October 2012 rating decision assigned a separate 10 percent disability rating for bilateral pes planus, effective November 16, 2005. The Veteran has not disagreed with the assigned disability rating or the effective date. Thus, this issue is not in appellate status. 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 In May 2011, the Board remanded the claim in part to schedule the Veteran for a VA joints examination, as well as a VA feet examination, to be performed by a physician. The Veteran underwent a VA examination of his joints and feet in August 2011. The examination was performed by a certified physician assistant. Moreover, the prior remand requested that the foot examiner provide an opinion as to whether the hallux valgus of either foot is severe and equivalent to amputation of the great toe. Such opinion was not provided. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court in Stegall has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. at 271. Thus, while the Board regrets the additional delay in this case, for the reasons discussed above, the case must be returned to the AMC/RO. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Board notes that the Veteran has moved several times and no longer resides in the Tuscaloosa area. It appears that subsequent to 2008 he has resided in areas served by the Durham VA Medical Center (VAMC) and Salisbury VAMC. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his hallux valgus and hammer toes disabilities and for his left knee disability. After securing the necessary release, the RO/AMC should request any relevant records identified that are not duplicates of those already contained in the record. If requested records cannot be obtained, the Veteran should be notified of such. Additionally, determine whether the Veteran has obtained treatment for his left knee and feet from the Durham VAMC and Salisbury VAMC, to include associated clinics. If so, obtain relevant treatment records dating since August 2008. If an inquiry to those facilities reveals there are no relevant treatment records, the claims file should be annotated to reflect such. 2. After the above has been completed to the extent possible, the Veteran should be scheduled for a VA joints examination by a physician to evaluate his left knee disability. All indicated tests and studies are to be performed, and a comprehensive history is to be obtained. The claims folder must be made available to the physician for review. The examiner should document any limitation of motion, to include any limitation of motion due to pain and describe any subluxation or instability, crepitance, or locking. In addition, the examiner should also describe any functional loss pertaining to the right knee. 3. The Veteran should also be scheduled for a VA foot examination by a podiatrist or physician, to determine the severity of the Veteran's right and left hallux valgus and hammertoe deformities. The claims folder must be provided to the examiner. All indicated tests and studies are to be performed, and a comprehensive history is to be obtained. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether the hallux valgus of either foot is severe and equivalent to amputation of the great toe. A rationale for the opinion should be provided. 4. After the above has been completed, the RO/AMC should review the examination reports to ensure they are responsive to the above directives. If not, the RO/AMC should undertake corrective procedures. If the above examinations are not performed by a physician (knee) and podiatrist or physician (feet) as requested, the RO/AMC should, at a minimum, have the examination reports reviewed and approved by a physician. 5. After the above development is complete, re-adjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case before returning the claims to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. BANFIELD 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).