Citation Nr: 1324557 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 08-04 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 20 percent for service-connected right foot, status post bunionectomy for the period from November 22, 2006, the date of claim. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran had active service from August 1982 to August 1985 and from December 1988 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2007 by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee (RO). The Veteran testified at a hearing at the RO before the undersigned in July 2009; a transcript of the hearing is associated with the record. In February 2011, the Board assigned an increased rating of 20 percent for the service-connected right foot, status post bunionectomy disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Order, the Court granted the VA General Counsel's and the Veteran's Joint Motion for Partial Remand. The part of the Board's decision that denied an evaluation in excess of 20 percent for the service-connected right foot disability was vacated and the Veteran's claim was remanded to the Board. In June 2012, the Board remanded the appeal for further development. In March 2013, the Board remanded the appeal for further development. The issue on the title page has been recharacterized to reflect the February 2011 decision, in which the Board increased the Veteran's disability rating for his service-connected right foot disability from 10 to 20 percent disabling, for the entire period on appeal. Specifically, the Board notes page ten of such decision, which reads as follows, "The Board has considered the possibility of staged ratings. The Board, however, concludes that the Veteran's service-connected right foot condition has been no more or less disabling during the appellate period. Accordingly, staged ratings are inapplicable." In a subsequent March 2011 rating decision, the RO, however, incorrectly staged the increased 20 percent rating, and assigned an effective date of July 10, 2010 for such rating. As the assignment of the staged rating is incorrect, the issue on appeal has been recharacterized to reflect the February 2011 decision, in which the Board assigned the increased 20 percent rating since November 22, 2006, the date of claim. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. 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 VA outpatient treatment records dated in May 2010 indicate that the Veteran reported chronic right foot pain, and underwent fusion surgery of his right metatarsophalangeal on June 4, 2010 at VA Medical Center, located in Memphis, Tennessee. Such records, however, are not associated with the claims file. As the aforementioned VA surgical records are relevant to the issue on appeal, the Board must return the case to obtain these records. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet.App. 611 (1992). On remand, the RO or AMC must attempt to obtain VA surgical records from the VA Medical Center in Memphis, Tennessee for June 2010, as well as from January 2013 to the present, as the Veteran appears to receive ongoing treatment from VA for his service-connected right foot disability. See Id. Accordingly, the case is REMANDED for the following actions: 1. The RO or AMC must undertake all necessary development to obtain and associate with the record all outstanding records of pertinent medical treatment, to include any pertinent treatment records from the VA Medical Center in Memphis, Tennessee for the period of June 2010, and for the period since January 2013. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran and his representative so notified. 2. Then, the claim must be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the appropriate opportunity for response before the claims files are returned to the Board for further appellate action. The Veteran 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 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). _________________________________________________ L. M. BARNARD Acting 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).