Citation Nr: 1320011 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-36 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hallux valgus. 2. Entitlement to service connection for hammertoes. 3. Entitlement to service connection for pes planus of the left foot. 4. Entitlement to a disability rating in excess of 20 percent for a lumbosacral spine disability from January 13, 2009, and in excess of 40 percent from August 28, 2012. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. A May 2007 rating decision denied service connection for hallux valgus, hammertoes, and pes planus of the left foot. A July 2009 rating decision continued a 20 percent disability rating for a lumbosacral spine disability. A September 2012 rating decision increased the disability rating for the lumbosacral spine disability to 40 percent effective August 28, 2012. However, that issue remains on appeal because the increased rating does not represent the highest possible benefit. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A remand of the Veteran's claims is warranted. Although the Board regrets the delay associated with the remand, further development of the record is required before the Board may render a decision. With respect to the Veteran's claims for service connection, VA must provide an examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for VA to make a decision. McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran received a VA examination of his feet in June 2011, the examiner did not address the etiology of his claimed disabilities. Medical treatment records indicate that the Veteran has been diagnosed with hallux valgus, hammertoe, and pes planus. The Veteran contends that he experienced foot pain during his 26 years of active duty service. While the Board finds no overt service documentation that the Veteran injured his feet in service, the Board finds that the Veteran is competent to provide evidence as to a simple, observable condition such as painful feet. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, with evidence of a current disability; a possible in-service event, injury, or disease; and the Veteran's lay statements regarding the relationship between the in-service event and his current disability, the issue must be remanded for a VA medical opinion to determine whether the Veteran's claimed disabilities are etiologically related to service. 38 C.F.R. § 3.159(c)(4) (2012). With respect to the Veteran's claim for an increased rating for his low back disability, the present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55 (1994). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). While the Veteran's last spine examination occurred relatively recently in August 2012, the Veteran's testimony at his March 2013 hearing before the undersigned indicated that the symptoms associated with his spine condition were worsening, and specifically that he had stopped working, at least in part due to back pain. Accordingly, an additional VA examination of the Veteran's spine is necessary to accurately evaluate the severity of his disability. At the hearing, the Veteran stated that he stopped working in August 2012, due to pain from his back disability. The Board finds that a new claim for TDIU has been raised by the record during the pendency of a claim for increase. Therefore, that claim for TDIU is before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of hallux valgus, hammertoe, and pes planus. The examiner must review the claims file and must note that review in the report. A complete rationale for all opinions reached should be provided. After thoroughly describing the nature and etiology of the Veteran's hallux valgus, hammertoe, and pes planus, the examiner must provide an opinion whether it is at least as likely as not (that is, a probability of 50 percent or greater) that any of those disabilities is etiologically related to the Veteran's active service. 2. Schedule the Veteran for a VA examination to determine the current severity of his low back disability, to include any orthopedic and neurological manifestations of that disability. The examiner must review the claims file and must note that review in the report. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. The examiner should also provide an opinion as to whether the Veteran's service-connected disabilities (lumbosacral disability, hypertension, tinnitus, left lower extremity radiculopathy, right ear hearing loss, and tinea unguium), without consideration of any nonservice-connected disabilities, render him unable to secure or follow a substantially gainful occupation. 3. Then readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Harvey P. Roberts 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).