Citation Nr: 1319503 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 08-32 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a left foot injury. 2. Entitlement to a disability rating in excess of 10 percent for service-connected residuals of a right foot injury. 3. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Catholic War Veterans of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in May 2010. A transcript of the hearing has been associated with the Veteran's VA claims file. In October 2010, the Board remanded the Veteran's claims for additional development of the record. The case has since been returned to the Board for appellate review. The Board notes that the Veteran's appeal had originally included the issue of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). However, the RO granted that claim in a September 2012 rating decision. Therefore, this issue is no longer in appellate status, and no further consideration is necessary. In October 2010, the Board also denied the Veteran's claim of entitlement to a disability rating in excess of 10 percent for service-connected tinnitus. Accordingly, this issue is no longer before the Board. Additionally, in the October 2010 decision, the Board observed that the Veteran had filed a timely notice of disagreement with the effective date for the assignment of separate 10 percent disability ratings for his service-connected right and left foot injury residuals. No action had been taken regarding that notice of disagreement; therefore, the Board remanded that issue for a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). While the record reflects that a SOC was issued in September 2012, the Veteran did not file a timely VA Form 9 or its equivalent. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). Thus, the Veteran's earlier effective date claim is not in appellate status, and no further consideration is necessary. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board remanded the Veteran's claim in October 2010 in order to schedule him for a VA examination to determine the severity and manifestations of his service-connected right and left foot injury residuals. While he was afforded a VA examination in December 2010, the Board finds that the examination report is inadequate, and the appeal must be remanded for additional development. In the December 2010 remand, the Board requested that a VA examiner "report all signs and symptoms necessary for rating the Veteran's foot disabilities under the rating criteria." The examiner was also asked to "comment as to whether each foot disorder is moderate, moderately severe, or severe and whether there is any actual loss of use of either foot." As noted above, the Veteran was afforded a VA examination in December 2010 during which he complained of pain and swelling in his feet while standing, walking, and when at rest. He stated that the pain occurs under both heels and on the dorsum of the both feet. The Veteran also described redness, stiffness, fatigability, weakness, and a lack of endurance. He reported that he can only stand for 10 minutes, walk for 150 feet, and needs the assistance of a cane or a walker due to his instability. Medical records associated with the Veteran's claims folder appear to support his allegations. For example, a physical examination conducted in June 2008 revealed weakness and tenderness in both feet. Pes planus, malalignment of the Achilles tendon, and an altered gait were also identified. A VA treatment record dated in May 2010 also noted that the Veteran had a "painful right ankle due to valgus instability and bilateral foot pain." Later that month, the Veteran reported that he had fallen because his ankle gave out, and in June 2010, he sought emergency treatment, in part, for right foot pain after rolling his ankle. In a December 2011 VA treatment record associated with his electronic claims folder, the Veteran was noted to have "foot instability" and high arches. Notwithstanding the above, the December 2010 VA examiner stated that the Veteran was not being examined for flat foot, pes cavus, muscle atrophy of the foot, or for "other foot deformity." Therefore, she did not provide information related to these disabilities. As a result, the examiner did not "report all signs and symptoms necessary for rating the Veteran's foot disabilities under the rating criteria," as requested in the October 2010 remand. Instead, the examiner stated that the Veteran's right and left feet were "normal" and noted that he has tenderness at the Achilles tendon area. However, the examiner's finding that the Veteran's feet were "normal" appears to conflict with her statement that the Veteran's prescribed corrective shoes provide "fair" relief of his instability. This finding also appears to conflict with the observation that the Veteran has an altered gait and a decreased range of motion of his feet. The October 2010 remand further requested that a VA examiner comment on whether the Veteran experiences any additional impairment due to pain, fatigability, incoordination, and weakness. However, the VA examiner did not address whether the tenderness that was objectively demonstrated during the examination resulted in any additional functional impairment. In addition, the Board requested that a VA examiner "address the effect of the Veteran's service-connected foot disabilities on his employment." While the VA examiner noted that the Veteran worked as a volunteer at a funeral home, she did not comment on the impact, if any, that the Veteran's service-connected foot disabilities would have on his employment. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional VA examination is necessary to ascertain the severity and manifestations of the Veteran's service-connected right and left foot disabilities. Finally, the Board notes that a decision on the claims for increased evaluations could affect the outcome of the Veteran's claim for TDIU; therefore, the claims are inextricably intertwined. For this reason, the issues of entitlement to increased evaluations must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his residuals of right and left foot injuries. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. A specific request should be made for VA medical records dated from August 2012 to the present. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected residuals of right and left foot injuries. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected foot disabilities. The examiner should report all signs and symptoms necessary for rating the Veteran's residuals of right and left foot injuries under the rating criteria for foot disabilities. He or she should comment as to whether each foot disorder is moderate, moderately severe, or severe and whether there is any actual loss of use of either foot. The examiner should also indicate whether the Veteran has any other symptoms associated with other foot disorders, such as flatfoot, pes cavus, or other foot deformities. If so, he or she should repot all findings necessary for rating those disabilities. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. The examiner should further address the effect of the Veteran's service-connected foot disabilities on his employability. A complete rationale should accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 3. After completing the above actions, the RO/AMC should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. Further development may include affording the Veteran a VA examination or obtaining a medical opinion in connection with his claim for TDIU. 4. When the development has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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 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). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).