Citation Nr: 1318743 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-42 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for residuals of a left foot fracture with tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1966 to July 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO) that continued a 0 percent rating for residuals of a left foot fracture with tendonitis. [The January 2009 request for a compensable rating was received within a year following issuance of the February 2008 rating decision that awarded service connection and assigned the initial rating for the left foot disability. However, the Veteran expressly indicated in that request that his disability had increased in severity (as opposed to seeking revision of the February 2008 decision by submission of new and material evidence).] The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Board finds that proper adjudication of this matter based on the record, as it currently stands, is not possible and that additional development of the evidentiary record is necessary; VA's duty to assist mandated under the Veterans Claims Assistance Act of 2000 (VCAA) has not been met. Historically, the Veteran fractured the second and third metatarsals of his left foot in service. On January 2008 VA foot examination a left foot fracture, with mild to moderate tendonitis, was diagnosed. Findings included objective evidence of tenderness and no objective evidence of swelling, instability, weakness, abnormal weight bearing, or painful motion. On February 2009 VA foot examination, findings included objective evidence of swelling and abnormal weight bearing, and no objective evidence of tenderness, instability, weakness, or painful motion. In his March 2009 notice of disagreement, the Veteran stated that his foot swells daily, after minimal walking, causing a constant limp. In an October 2009 lay statement, he asserted that his abnormal weight bearing, which was observed by the February 2009 examiner, results from worsening foot pain. He also reported that his left foot becomes fatigued with prolonged standing (he did not report fatigability on February 2009 examination). In a letter dated in December 2009, Dr. M. K., a private podiatrist, stated that the Veteran's foot pain would never be fully relieved due to the manner in which his joints healed after the fracture in service. The Veteran is competent to observe that his disability has worsened since the February 2009 VA examination. Accordingly, because the February 2009 VA examination findings may not reflect the current severity of the disability, further development of the medical evidence, to include a contemporaneous examination to determine the severity of the residuals of left foot fracture with tendonitis, is necessary. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of evaluations and treatment he has received for his left foot disability since February 2008 (records of which are not already associated with the record). The RO should secure for association with the record copies of the complete clinical records of all evaluations and treatment from all providers identified. 2. After the development sought above is completed, the RO should arrange for an orthopedic examination of the Veteran to determine the current severity of his service-connected left foot disability. The Veteran's entire record (to include this remand and all records received pursuant to the development sought above) must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed (studies conducted should specifically include X-rays to ascertain whether there is arthritis of the left foot associated with the fracture residuals). All symptoms and functional limitations due to the service-connected left foot disability should be described in detail. The examiner should explain the rationale for all opinions. 3. The RO should then review the record and readjudicate the claim. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter that 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 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). _________________________________________________ George R. Senyk 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).