Citation Nr: 1316588 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 11-18 451 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to an initial, compensable rating for hemorrhoids. 2. Entitlement to an initial rating in excess of 10 percent for pes planus with bunions bilaterally (claimed as bilateral foot condition), prior to September 8, 2010. 3. Entitlement to a rating in excess of 30 percent for pes planus with bunions bilaterally (claimed as bilateral foot condition), from September 8, 2010. (The issues of entitlement to service connection for bilateral hearing loss and low back disability are the subject of a separate appellate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1997 to June 2000. This appeal to the Board of Veterans' Appeals (Board) arose from July 2010 and February 2011 rating decisions. In the July 2010 rating decision, the RO, inter alia, granted service connection for hemorrhoids and assigned noncompensable disability rating, effective June 9, 2000, the date after the Veteran's discharge from active service. In June 2011, the Veteran filed a notice of disagreement (NOD) to the initial rating assigned. The RO issued a statement of the case (SOC) in June 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in that same month. In the February 2011 rating decision, the RO, inter alia, granted service connection and assigned a 10 percent disability rating for pes planus with bunion formation bilaterally, effective June 9, 2000 and a 30 percent disability rating, effective September 8, 2010. In June 2011, the Veteran filed a NOD to the initial ratings assigned. The RO issued a SOC in June 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in that same month. The Board observes that the Veteran and his representative have characterized the issue on appeal with respect to the Veteran's pes planus as seeking an earlier effective date for the award of a 30 percent rating.. However, because the Veteran has disagreed with the initial ratings assigned following the awards of service connection for hemorrhoids and pes planus with bunion formation bilaterally, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted staged ratings for the Veteran's pes planus, inasmuch as a higher rating for this disability is available, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as set forth on the title page and the claim for a higher rating remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision addressing the claim for an initial compensable rating is set forth below. The claims for an initial rating in excess of 10 percent prior to September 8, 2010 and in excess of 30 percent thereafter for pes planus with buntions is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. The Veteran's hemorrhoids have been characterized as small, reducible, with no evidence of thrombosis, excessive redundant tissue or frequent recurrence. 3. At all times pertinent to the current claim, the schedular criteria have been adequate to evaluate the Veteran's hemorrhoids. CONCLUSION OF LAW The criteria for a compensable rating for hemorrhoids are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3,321, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in March 2001, May 2004 and May 2010 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his underlying claim for service connection. These letters also informed the Veteran of what information and evidence must be submitted by the appellant and what information and evidence would be obtained by VA. The July 2010 rating decision reflects adjudication of the claim for service connection after issuance of these letters. Hence, the March 2001, May 2004 and May 2010 letters-which meets Pelegrini's content of notice requirements-also meets the VCAA's timing of notice requirement. The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates. However, the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the claim, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of VA and private medical treatment records, and the report of the July 2010 VA examination. Also of record and considered in connection with the appeal is the various written statements provided by the Veteran, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with any claim on appeal, prior to appellate consideration, is required. The Board notes the claims file includes a decision from the Social Security Administration (SSA) denying the Veteran's claim for disability benefits. While the decision is of record, the underlying medical evidence is not; however, the decision clearly shows that the Veteran was not seeking disability benefits for his hemorrhoids, but rather for unrelated disorders. There has been no argument that the SSA records are pertinent to the claim being adjudicated in this decision as to require that additional adjudication resources be expended to obtain these records. See 38 U.S.C.A. § 5103A(b),(c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim herein decided, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either of the claims herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on any claim. Any such error is deemed harmless and does not preclude appellate consideration of either of the matters herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Initial Rating Claim for Hemorrhoids Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is entitlement to higher rating following the initial award of service connection, evaluation of the medical evidence to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran was granted service connection for hemorrhoids in the appealed July 2010 rating decision. A noncompensable rating was assigned, June 9, 2000, the date after the Veteran's discharge from active service. The RO has evaluated the Veteran's hemorrhoids under Diagnostic Code 7336. Under that diagnostic code, a noncompensable rating is assigned for mild or moderate symptoms. A 10 percent rating is assigned for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. A maximum 20 percent rating is assigned for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. Considering the pertinent evidence in light of the applicable criteria, the Board finds that, at no point since the June 9, 2000 effective date of the award of service connection has the Veteran's hemorrhoids warranted a compensable rating. The report of a December 2000 VA examination shows that the Veteran reported blood in his stool on three occasions about six months ago and his stool was loose. He had no further episodes. He had no weight gain or loss or signs of anemia. His rectal examination was normal. The impression was bright red blood per rectum and now resolved. VA treatment records have been thoroughly reviewed. A May 2002 record noted that the Veteran reported loose stools twice a week; however, there was no mention of hemorrhoids. A January 2003 treatment record noted that the Veteran reported blood in stool on two occasions. The second incident was not associated with constipation. Rectal examination was negative. In February 2003, the Veteran complained of intermittent bright red blood per rectum since 1999. His stools were usually loose when he had a rectal bleed, sometimes with painful defecation. It was observed that he had a mild rise in ALT in September 2002. It was noted that he had gained weight. A March 2003 gastroenterology consult again noted history of bright red blood intermittently with occasional pain in anal region. The examiner observes that a sigmoidoscopy was done, which showed very small internal hemorrhoids only with no anal fissure or proctitis. A contemporaneous sigmoidoscopy procedure report confirmed these findings and gave an impression of normal flexible sigmoidoscopy examination. A May 2003 gastroenterology progress report showed a history of bright red blood per rectum and occasional abdominal pain with mild rise in ALT with fluctuations in level. However, it was observed that the sigmoidoscopy showed mild internal hemorrhoids only. The Veteran had been prescribed Anusol HC and bleeding had stopped, but fecal occult blood test was positive. There was no weight loss, but the Veteran was trying to lose weight. The assessment was bright red blood due to hemorrhoids to continue with present management. Mild rise in ALT was likely due to NASH versus medication effect. A January 2004 record noted a history of internal hemorrhoids. An October 2004 VA colonoscopy report showed a normal rectal examination. Small non-bleeding internal hemorrhoids were present. A July 2009 VA sigmoidoscopy procedure report was done due to complaints of rectal bleeding. It was a normal rectal examination. Small internal hemorrhoids were observed, but there was no bleeding stigmata. An August 2009 private report from A.A., M.D. mainly provided an opinion that the Veteran's hemorrhoids manifested in service, but did not provide any clinical findings for rating purposes. The Veteran was afforded a VA examination in July 2010. The claims file as reviewed. The examiner noted the March 2003 and July 2009 sigmoidoscope reports that revealed small internal hemorrhoids. The Veteran reported a history of blood in stools and finding of blood on tissue paper after cleaning on an average of once a month. He treated the hemorrhoids with psyllium powder daily and preparation H cream locally and Colace tablet as needed. Although the Veteran reported frequent rectal bleeding, there was no history of hospitalization, surgery, trauma to rectum or anus, neoplasm, spinal cord injury related to rectum or anus, rectal prolapse, or recurrent anal infections or proctitis. The Veteran denied anal itching, burning diarrhea and swelling, but reported pain, tenesmus and difficulty passing stool. The Veteran reported recurrence of four or more time per year. Although, there was no history of thrombosis, the Veteran reported mild fecal leakage and occasional involuntary bowel movement that did not require pads. There was no history of perianal discharge. On physical examination, there was no weight change. Hemorrhoids were not present. Further, there were no anorectal fistula, anal or rectal stricture, or rectal prolapse present. The sphincter was not impaired. There were no signs of anemia or pallor. It was noted that the Veteran was laid off from his security job nine months prior. The diagnosis was small, internal hemorrhoids. The examiner found no significant effects on occupation or daily activities. In an August 2010 statement, the Veteran reported persistent bleeding, chronic pain and anal itching as well as swelling and burning. He also reported that sometimes he had a lot of leakage in his underwear. He also indicated that the VA examination was insufficient because information was missing from the examination report that he had reported. He reported trouble understanding the examiner because of his hearing problems. He concluded that his hemorrhoids were not mild or moderate, but an everyday problem that affected his daily activities. Although, the Veteran has indicated that the most recent examination was deficient. The Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Rizzo [v. Shinseki,] 580 F.3d at 1290-91. The argument that a VA medical examiner's opinion is inadequate is sufficiently close to the argument raised in Rizzo that it should be treated the same." Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Hilkert v. West, 12 Vet. App. 145, 151. Thus, the Board may presume that the July 2010 VA examiner accurately reported findings. Moreover, the assertions of the Veteran are not sufficient to overcome the above-mentioned presumption. Accordingly, given that the claims file was reviewed by the VA examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review and of high probative value. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Board finds that the medical evidence of record does not show hemorrhoid manifestations of the type described in the criteria for a compensable disability rating. There has been no objective finding of large hemorrhoids, excessive redundant tissue, thrombosis, anemia or fissures, or that the hemorrhoids were irreducible. The most recent VA examination specifically indicated that none of these symptoms were present. The Veteran's hemorrhoids, when present, have always been described as small. Moreover, although the Veteran has reported bleeding at times, prior to his most recent August 2010 statement, it has always been described as intermittent as opposed to persistent. Importantly, the 2004 colonoscopy and July 2009 sigmoidoscopy showed that the hemorrhoids were non- bleeding. Moreover, the criteria for a 20 percent rating are conjunctive, not disjunctive; thus all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Although the Veteran recently reported persistent bleeding, there have clearly been no objective findings of anemia or fissures, which are necessary for 20 percent rating. Again, the most recent VA examination clearly indicated that there was no evidence of anemia or fissures. Importantly, the examiner found no significant effects on occupation or daily activities. In sum, the Veteran's symptoms do not meet the criteria for a compensable rating. The Board recognizes that the Veteran has also reported mild fecal leakage, which is not addressed under Diagnostic Code 7336 for hemorrhoids. However, there have been no objective findings of any rectum prolapse, stricture or loss of sphincter control to warrant compensable ratings under other diagnostic codes, specifically 38 C.F.R. § 4.114, Diagnostic Codes 7332, 7333, and 7334. The July 2010 VA examiner clearly found that none of these problems were present. The Board has also considered whether there are any other potentially applicable diagnostic codes pursuant to which any higher rating for the Veteran's service-connected hemorrhoids could be assigned, but has found none more applicable here. See 38 C.F.R. § 4.114. The Board notes that, in reaching the above-noted determinations, the Veteran's own assertions, and those of his representative, advanced in written statements, have been considered. However, the Board finds that the lay assertions made in support of his claim for higher initial rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's hemorrhoids. See 38 C.F.R. § 3.159 (a)(1); Bostain, 11 Vet. App. at 127; Routen. 10 Vet. App. at 186. As discussed above, the persuasive evidence indicates that the Veteran's hemorrhoids are consistent with the assigned noncompensable rating. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any point since the June 9, 2000 effective date of the award of service connection has the Veteran's service-connected hemorrhoids reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration at all pertinent points. The rating schedule fully contemplates the described hemorrhoids symptomatology, to include size, recurrence and bleeding, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the Board notes that the February 2011 rating decision awarded a TDIU, effective September 3, 2009, the date after the Veteran was last able to work according to his August 2010 claim for TDIU. Accordingly, as the Veteran has been awarded TDIU since his last date of employment, there is no need for further analysis with respect to this matter. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability under consideration, pursuant to Fenderson (cited to above), and that a compensable rating for hemorrhoids must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53- 56. ORDER An initial, compensable rating for hemorrhoids is denied. REMAND The Board's review of the claims file reveals that further RO action on these claims on appeal is warranted. With respect to the issue of a higher rating for pes planus with bilateral bunions, based upon review of the claims file, it appears that the Veteran has received private treatment for this disability approximately in 2006, but these records have not been associated with the claims file. Specifically, a June 2006 VA treatment record indicated that the Veteran had received treatment from an outside podiatrist. Further, the claims file includes a June 2006 handwritten note from the Foot and Ankle Health Center. As these record are pertinent to the issue on appeal, the RO should take appropriate steps to obtain them, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from private facilities. The Board further notes that the Veteran was last afforded a VA examination in January 2011. Importantly, it appears that the effective date assigned by the RO for the 30 percent evaluation for the Veteran's service-connected feet disability was based on the Veteran's September 8, 2010 claim to reopen as opposed to any medical documentation demonstrating an actual increase in severity. In turn, a medical opinion would be helpful to determine at what point since June 9, 2000, the Veteran's bilateral pes planus with bunions had increased in severity. To ensure that the record reflects the current severity of the Veteran's bilateral pes planus with bunions and in light of the additional evidence to be associated with the claims file, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, are needed to properly evaluate the service-connected disability under consideration. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA podiatry or orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claim as it will be considered based on the other evidence of record. 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, the RO should also obtain and associate with the claims file all outstanding VA treatment records. The claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in Detroit, Michigan, dated from May 2010; however, more recent records from this facility may exist. Moreover, there appears to be gaps in the VA treatment records prior to May 2010. For instance, the records associated with the record in May 2010 appear to primarily pertain to dental treatment. Moreover, prior treatment records appear to have been primarily submitted by the Veteran so it is unclear whether they are complete. Further, the Veteran's Virtual VA electronic record also does not include any VA treatment records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, to ensure that that all of the applicable VA treatment records are of record, the RO must obtain from the Detroit, Michigan VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from June 2000 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Moreover, as discussed above, the claims file also shows that that the Veteran filed for SSA disability benefits. In contrast to the Veteran's claim decided herein, it appears that the Veteran's SSA records may be relevant to the issue concerning the severity of the Veteran's pes planus. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities, and to associate all records and/or responses received with the claims file. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. The RO's adjudication of the claims for higher rating should include continued consideration of whether any, or further staged rating of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above), is warranted. Accordingly, these matters are hereby REMANDED to the RO for the following action: 1. Obtain from the Detroit VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from June 2000 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the Virtual VA electronic file. 2. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding private records, to include any 2006 private treatment from the Foot and Ankle Health Center or any other private podiatrist. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo VA podiatry or orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should specifically note all manifestations of the serve-connected bilateral pes planus with bunions, as well as describe the frequency and severity of each manifestation. The examiner is asked to address whether bilateral pes planus results in weightbearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, pronounced marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances. The examiner should further determine whether the Veteran's hallux valgus is considered severe, equivalent to amputation of great toe or if surgery had been performed with resection of metatarsal head. The examiner should also provide a current assessment of the overall severity of the service-connected bilateral pes planus-as moderate, moderately severe, severe, or resulting in loss of use of the foot, and/or an assessment of the severity of the disability at stage identified above). The physician should also indicate whether, at any point since June 9, 2000, the Veteran's bilateral pes planus with bunions bilaterally has increased in severity, and, if so, the approximate date(s) of any such change(s). The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs