Citation Nr: 1320541	
Decision Date: 06/26/13    Archive Date: 07/05/13

DOCKET NO.  10-01 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a temporary total rating based on convalescence under the provisions of 38 C.F.R. § 4.30 (2012).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James R. Siegel, Counsel


INTRODUCTION

The Veteran had active duty service from August 1984 to January 1993. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The RO has denied benefits under 38 C.F.R. § 4.30 (2012) for the reason that the medical procedure in question was for treatment of a disorder which is not service-connected.  Specifically, the RO found that the surgery in February 2009 was for plantar fasciitis which is not service-connected.  The Veteran's service-connected foot disabilities are residuals stress fracture of the first metatarsal of the left foot and residuals of a stress fracture of the right great toe.  

Review of the claims file shows that the RO subsequently denied service connection for plantar fasciitis by rating decision in August 2011.  Although there is no document clearly labeled as a notice of disagreement, the Veteran's representative did file a statement with the RO in October 2011 which includes argument to the effect that the Veteran maintains that the disorder treated in February 2009 was related to service.  The representative then referred to pertinent laws and regulations dealing with service connection.  The Board believes that the October 2011 statement from the representative arguably constitutes a timely notice of disagreement to the August 2011 denial of service connection for plantar fasciitis.  Recognizing that the issue addressed in the August 2011 rating decision goes to the determinative fact relied on by the RO in denying temporary total benefits under 38 C.F.R. § 4.30, the Board believes that the issues are effectively intertwined and that the Veteran should be given the chance to perfect an appeal on the service connection for plantar fasciitis issue before the temporary total rating issue is addressed on appeal.  See also Manlincon v. West, 12, Vet.App. 238 (1999).


Accordingly, the case is REMANDED for the following actions:

1.  The RO should take appropriate action, including issuance of a statement of the case, on the appeal initiated by the veteran from the August 2011 rating decision which denied service connection for plantar fasciitis.  The veteran and his representative should be clearly advised of the need to file a timely substantive appeal if the veteran wishes to complete an appeal from that determination.  

2.  After affording the Veteran the opportunity to file a timely substantive appeal, the RO should review the record and issue a supplemental statement of the case on the temporary total rating issue.  The case should then be returned to the Board for appellate review of all issues which may properly be in appellate status at that time. 

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 other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


_________________________________________________
ALAN S. PEEVY
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).