Citation Nr: 1323339 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-26 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral pes planus and plantar fasciitis with arthritis of the feet and status post right foot surgery (bilateral foot disability). REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1985 to February 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO) that assigned a temporary total (convalescence) rating for bilateral foot disability effective November 2, 2007 and a 10 percent rating effective January 1, 2008. In May 2010, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. At the hearing, the Veteran clarified that his appeal in the matter of the rating for his bilateral foot disability was limited to the rating that was assigned upon termination of the temporary total convalescent rating. In July 2010 this matter was remanded by the Board for additional development, to include an examination to assess the Veteran's bilateral foot disability. Following this examination, a March 2011 rating decision increased the rating for the foot disability to 30 percent effective January 1, 2008, and awarded a temporary total rating for the period from December 8, 2010 to February 1, 2011 [The matter of the rating for that period of time is not for consideration, as the disability was rated totally disabling.]. The appeal is being 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 Veteran contends that his bilateral foot disability meets the criteria for a 50 percent rating. The findings on the December 2010 VA examination do not appear to reflect or suggest such a level of severity; however, subsequent treatment records suggest otherwise. A February 2012 record notes the Veteran was still complaining of pain after his third surgical procedure for plantar fasciitis. An April 2011 podiatry clinic note reflects the Veteran was still having right lower extremity pain upon walking for any duration of time, and includes a notation that he had received custom orthotics in July 2010 and wore them daily without relief of foot pain. It was also noted that he still had extreme tenderness on the plantar surfaces of the right foot and had a severely tight tendo Achilles tendon with manipulation. As the evidence suggests worsening of the Veteran's bilateral foot disability, and given the length of the intervening period, a contemporaneous examination to assess the severity of the disability is necessary. Furthermore, records of any additional treatment the Veteran has received for his bilateral foot disability in the interim are pertinent evidence which must be secured. Accordingly, the case is REMANDED for the following: 1. The RO should secure for the record copies of the complete updated (to the present) records the Veteran has received for his foot disability. 2. The RO should then arrange for the Veteran to be examined by an appropriate physician to determine the current severity of his bilateral foot disability. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. The examiner should have available for review a copy of the criteria in diagnostic Code 5276, and should note the presence or absence of each symptom listed in the criteria for a 50 percent rating (to specifically include whether the disability is improved by orthotics). All findings should be described in detail. The examiner should explain the rationale for any opinions offered. 3. The RO should then review the record and readjudicate the claim. If it 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, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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).