Citation Nr: 1317907 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-47 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased (compensable) rating for bilateral flat foot disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1979 to September 2000. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which denied an increased compensable evaluation for bilateral flat feet disability. On his November 2009 substantive appeal, the Veteran indicated that he wanted a hearing before the Board to be heard at the RO (Travel Board). In a September 2011 written statement, the Veteran withdrew his request for a hearing. Therefore, the request for a hearing has been withdrawn. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In a February 2010 statement, the Veteran wrote that he wanted to have his appeal, which was filed on November 23, 2009, "withdrawn." In the same statement, however, the Veteran made statements that are inconsistent with a desire to withdraw the increased rating issue that is on appeal. The Veteran wrote the following: "I am also requesting to have my claim for bilateral flat feet to be submitted for reconsideration for an increase compensation with the medical documentation that is presently in my medical file." Notwithstanding his use of the phrase "withdrawn" in one part of the statement, the Veteran's further statement in the same document reflects a request to reconsider his "claim" for increase is a desire for readjudication of the issue of increased rating that is already on appeal. The Veteran reported that he was seeing another private foot specialist in the near future and would be submitting that evidence in support of his "claim." It is also of note that the Veteran did not clearly indicate that he was filing a new claim for increase. In such cases as this, where there is ambiguity and inconsistency within the statement itself, there cannot be a clear intent to withdraw the appeal. Pursuant to 38 C.F.R. § 20.204 (2012), an appeal to the Board may be withdrawn as to any or all issues involved in the appeal. Withdrawal of the appeal is deemed a withdrawal of the Notice of Disagreement, and if filed, the Substantive Appeal as to the issue on appeal. 38 C.F.R. § 20.204. A withdrawal of a claim, however, is only effective if the withdrawal is explicit, unambiguous and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki 25 Vet. App. 45, 57-58 (2011); Kalman v. Principi, 18 Vet. App. 522, 524-25 (2004). In this case, it is at least ambiguous as whether the Veteran sought to withdraw the increased rating claim for his bilateral flat foot disability. Although the Veteran used the word "withdrawn," the majority of his statement seems to be requesting readjudication of his increased rating claim based on additional evidence submitted in the record; therefore, the Board finds that the appeal as to the claim for an increased compensable rating for bilateral flat feet disability remains pending. The Board notes that November 23, 2009 is the date the Veteran signed his substantive appeal (i.e., VA Form 9). It appears that the RO accepted the Veteran's February 2010 statement as a withdrawal of the appeal for increased rating claim for bilateral flat foot disability, and also as a new claim for increased rating. See Veteran Claims Assistant Act letter mailed to Veteran in March 2010. In light of the ambiguity in the statement, and the Board's finding that the appeal for increased rating for bilateral flat foot disability has not been withdrawn by the February 2010 statement, upon remand, the RO may close the newly opened increased rating claim, and instead take any development actions as part of the increased rating issue that is already on appeal. The Board finds that a new VA examination is warranted in this claim for increase. The Veteran last underwent a VA examination in September 2009, over three years ago. Although the mere passage of time is insufficient to require a new VA examination, the Court has held that, where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately determine the current state of the disability, VA must provide a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992). In this case, there is some evidence that at least suggests a worsening of the bilateral foot disability since the last VA examination in September 2009. In a statement dated December 2009, submitted after the November 2009 statement of the case, the Veteran's work colleague stated that he had noticed lately, within the last few months, that the Veteran had experienced some problems with standing on his feet all day. Additionally, in his February 2010 statement, the Veteran claimed that he was being seen by a foot specialist and that he would be submitting these records in support of his increased rating claim. The Board has liberally construed these statements as the Veteran's claim that his flat feet disability has worsened since his last VA examination in September 2009. Finally, the last VA treatment record is dated July 29, 2009 from the Savannah VA Outpatient Clinic. On remand, updated VA treatment records should be obtained and associated with the claims file or the Virtual VA electronic claims file. Accordingly, the claim for an increased (compensable) rating for bilateral flat feet disability is REMANDED for the following action: 1. The RO/AMC should obtain all treatment records from the Savannah Outpatient Clinic from July 30, 2009 to the present. Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record. 2. Then, schedule the Veteran for a VA examination in order to assess the severity of his current bilateral flat foot disability. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The relevant documents in the claims file should be reviewed by the VA examiner in connection with the examination. 3. Thereafter, the increased rating issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ J. Parker 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).