Citation Nr: 1320277 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-34 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for a bilateral foot disability manifested by pes cavus, plantar fasciitis, and bilateral calcaneal spurs, currently evaluated as 10 percent disabling, to specifically include whether entitlement to a separate compensable rating for bilateral calcaneal spurs is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from May 1982 to May 1998. He also is noted to have had 27 years and 29 days of total prior inactive service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which effectuated a May 2008 Board decision and granted service connection for bilateral calcaneal spurs and assigned a 0 percent (noncompensable) disability rating, effective from August 10, 2000. In the September 2008 rating decision, the RO also indicated that the noncompensable evaluation was assigned and included in with the Veteran's current service-connected disabilities of pes cavus and plantar fasciitis, and that the symptoms of pain were already compensable under the Veteran's claw foot and plantar fasciitis conditions. In March 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 on his part. REMAND The Veteran essentially contends that his service-connected foot disability, manifested by pes cavus, plantar fasciitis, and bilateral calcaneal spurs, is more severe than currently rated. The Board acknowledges that the issue has been adjudicated by the RO as "entitlement to a separate compensable rating for bilateral calcaneal spurs;" however, upon careful review of the record, it appears that the Veteran is basically seeking a higher rating for his service-connected foot disability. By way of history, the Board notes that by June 2001 rating decision, the RO denied service connection for calcaneal spurs of the right and left feet, but granted service connection for pes cavus with plantar fasciitis and assigned a 10 percent disability rating, effective August 10, 2000. The Veteran appealed the denial of service connection for bilateral calcaneal spurs. Thereafter, the Board remanded the case for further evidentiary development in January 2004 and October 2004. In March 2006, the Board issued a decision that, in pertinent part, denied service connection for bilateral calcaneal spurs. The Veteran then submitted a timely appeal to the United States Court of Appeal for Veterans Claims (Court). In May 2007, the Court issued an Order granting a Joint Motion requesting that the Board's decision be vacated and remanding the matter for further action. In July 2007, the Board remanded this matter for additional development, to include obtaining a VA examination. In May 2008, the Board issued a decision granting service connection for bilateral calcaneal spurs, specifically finding that the Veteran's foot disability included bilateral calcaneal spurs due to disease or injury incurred in service. In the September 2008 rating decision noted above, the RO implemented the Board's May 2008 decision by granting service connection for bilateral calcaneal spurs, and assigning a noncompensable disability rating, effective from August 10, 2000. However, the RO also noted that the Veteran's bilateral calcaneal spurs were included in with his service-connected disabilities of pes cavus and plantar fasciitis, and that the symptoms of pain were already compensable under the service-connected claw foot and plantar fasciitis conditions. The RO further indicated that to assign a separate evaluation for pain would be pyramiding of symptomatology, and noted that the Veteran was currently assigned a 10 percent rating for symptoms associated with claw foot and plantar fasciitis. Thereafter, in November 2008, the Veteran filed a notice of disagreement with the RO's September 2008 rating decision. He indicated that he felt "a percentage is warranted," and his representative indicated he was appealing the "non-compensable evaluation assigned for the bilateral calcaneal spurring." Thereafter, in his substantive appeal (VA Form 9), the Veteran indicated that "the painful symptoms and limitations warranted a higher evaluation for his service-connected pes cavus". In a statement submitted in lieu of VA Form 646, the representative indicated that even if the Board were to conclude that the Veteran's bilateral calcaneal spurs were too close in symptomatology to grant a separate evaluation from pes cavus with plantar fasciitis, the Veteran still warranted an evaluation that adequately reflects the severity of his bilateral foot condition. The representative also requested that the Veteran be afforded an adequate examination to properly address his disability. Thereafter, the representative submitted a memorandum dated in December 2010, indicating that the Veteran wished to undergo a complete and thorough VA examination to discover the true severity of his feet condition currently under appeal and rated as 10 percent disabling. Further, in March 2011, the Veteran's testimony indicated that he was going for a higher rating for his feet in general, and testified as to his current foot symptoms as well as what activities his foot condition limited. In viewing the contentions advanced by both the Veteran and his representative in the light most favorable to his claim, the Board finds that the Veteran has reasonably raised and argued a claim for entitlement to an increased rating for his service-connected foot disability. Turning to the record, the Board notes that the Veteran last underwent a VA examination in November 2007 regarding his feet. Since then, there appear to have been changes to his foot disability, namely, VA treatment records show that in May 2009 he was prescribed an orthotic shoe insert for acquired cavus deformity of the foot. Additionally, a VA treatment record in May 2007 indicated he had pes cavus and hammertoes. Finally, the record shows that the Veteran's peripheral neuropathy of the lower extremities appears to also cause foot symptoms. The Board concludes that additional evidentiary development should be completed to determine the current severity of the Veteran's service-connected bilateral foot disability, and to separate symptoms from service-connected and non-service-connected disabilities to the extent possible. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask that he identify any outstanding records pertaining to his service-connected bilateral foot disability, dated since March 2011. After obtaining any necessary authorization forms from the Veteran, attempt to obtain any pertinent records and associate them with claims folder. Negative replies should be requested. 2. After completing the above, schedule the Veteran for an appropriate VA examination to determine the current severity of the Veteran's bilateral foot disability. The examiner must review the claims folder and note that such review has been accomplished. The examiner should provide an assessment of the current severity of the Veteran's service-connected bilateral foot disability and should specifically note any related manifestations or symptoms. The examiner should also note whether any toe tends to dorsiflexion, and if so, which toes; any limitation of dorsiflexion at the ankle, and if so, to what degree; any shortening of the plantar fascia and all related symptoms thereof; and any other symptomatology, such as tenderness under the metatarsal heads, deformity, painful callosities, atrophy of musculature, and weakness. Range of motion testing and assessments of functional impairment due to pain on motion and use must be included. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the feet are used repeatedly. The examiner should attempt to separate symptoms due to service-connected disability from those due to non-service-connected disability, to include lower extremity peripheral neuropathy. The examiner must explain the rationale for any opinion(s) given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated and explained why this is so. 3. Thereafter, readjudicate the issue on appeal. If any determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits. They should also be given an opportunity to respond to the SSOC. 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 (CONTINUED ON NEXT PAGE) other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).