Citation Nr: 1317706 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-15 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial compensable evaluation for bilateral heel spurs and arch collapse, prior to December 20, 2011. 2. Entitlement to an initial evaluation in excess of 10 percent for bilateral heel spurs and arch collapse, since December 20, 2011. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active military service from April 1982 to April 2004. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which awarded service connection for bilateral heel spurs and arch collapse, and assigned an initial noncompensable evaluation, effective May 1, 2004. The Board denied the Veteran's claim for an initial compensable evaluation in March 2008; the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2011 Memorandum Decision, the Court vacated the Board's March 2008 decision and remanded the claim to the Board. Specifically, the Court determined that the record reasonably raised the possibility of an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b), and that the Board erred in not considering such an evaluation. The Board then remanded the appeal in November 2011 for the purposes of obtaining any relevant private treatment records; scheduling the Veteran for a VA foot examination; and consideration of referral for an extra-schedular evaluation under 38 C.F.R. § 3.321(b). In July 2012, the RO increased the rating for the bilateral heel spurs and arch collapse to 10 percent, effective from December 20, 2011, the date of a VA examination that reflected findings sufficient to establish entitlement to a higher evaluation. The Veteran has continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating that a veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). Also, in July 2012, the RO referred the Veteran's claim to the Director of Compensation and Pension Service for consideration of entitlement to an extra-schedular evaluation. The subsequent opinion provided by the Director was not contained in either the Veteran's claims file, or in the Virtual VA claims file. As such, the Board again remanded the appeal in January 2013 for the specific purpose of obtaining and associated such opinion with the claims file. To date, this has not been accomplished; as such, further development is necessary, as indicated below. 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 Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the appeal can be properly adjudicated. As noted above, the Court vacated and remanded the Board's March 2008 decision because the Board failed to consider whether a referral for extra-schedular consideration for the Veteran's bilateral heel spurs and arch collapse was warranted. Accordingly, in November 2011, the Board remanded this claim and directed the RO to specifically consider whether a referral for an extra-schedular evaluation was warranted under 38 C.F.R. § 3.321(b). In July 2012, the RO referred the Veteran's appeal to the Director of Compensation and Pension Service to determine whether the Veteran's disability picture warranted the assignment of an extra-schedular rating. The referral is contained in the claims file. However, as of January 2013, no corresponding opinion from the Director was of record. As such, the Board once again remanded the Veteran's claim for the specific purpose of obtaining and associating the Director's opinion with the claims file. See January 2013 Board Remand. To date, the RO has issued a Supplemental Statement of the Case (SSOC) (April 2013) which references a March 2013 opinion from the Director of Compensation and Pension Services; however, the opinion provided by the Director of Compensation and Pension Service (as requested in the July 2012 referral) is still not of record in the either the Veteran's paper claims file, or in the Virtual VA claims file. As previously noted, this opinion is essential to the Veteran's appeal and must be obtained. See also Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms). Therefore, this claim must once again be remanded to the RO to associate the Director of Compensation and Pension Service's opinion regarding an extra-schedular evaluation for the Veteran's service-connected bilateral heel spurs and arch collapse. See Stegall, supra. As a final matter, the Board notes that all correspondence sent to the Veteran since February 2013, to include VCAA notification and the April 2013 SSOC, has been returned to the RO/AMC as undeliverable. A review of the Veteran's Virtual VA claims file and correspondence contained therein indicates that the Veteran has a new mailing address effective January 2013 (in Hampton, VA, as opposed to Chesapeake, VA). As such, upon remand, the RO should confirm the Veteran's present address to ensure that she receives all VA correspondence hereforth. Accordingly, the case is REMANDED for the following action: 1. Take the necessary steps to verify the Veteran's current mailing address, by contacting her at the address of record in Chesapeake, VA, and the address noted in the January 2013 VA Debt Management Center RO correspondence at Hampton, VA, and through her representative. Efforts to confirm her current address should be documented in the claims file. All subsequent correspondence from VA to the Veteran should be sent to the most recently established correct address of record and should be documented in the claims folder. If the Veteran's current mailing address cannot be ascertained, all subsequent correspondence should be sent to both the addresses. 2. Obtain the Veteran's VA treatment records dated since October 2011. 3. Thereafter, obtain and associate with the Veteran's claims file the March 2013 Director of Compensation and Pension Service's opinion regarding an extra-schedular evaluation for the Veteran's service-connected bilateral heel spurs and arch collapse, as referred to in the July 2012 extra-schedular referral. 4. After the above action has been completed, readjudicate the Veteran's appeal. If the appeal remains denied, issue to the Veteran and her representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). _________________________________________________ WAYNE M. BRAEUER 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).