Citation Nr: 1325199 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 09-15 094A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an increased rating in excess of 10 percent for service-connected flat feet prior to September 10, 2012 and in excess of 30 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran had active service from February 1957 to January 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board. The requested hearing was conducted in June 2010 by the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file. In August 2010, the Board remanded this claim for additional development. The Board subsequently denied the claim in March 2012. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Memorandum Decision, the Court vacated the March 2012 Board decision that denied an increased rating in excess of 10 percent for flat feet, and remanded the matter to the Board for further development. In a January 2013 rating decision, the RO simultaneously granted a 30 percent rating for the bilateral flat feet, effective September 10, 2012 while the issue was still under appeal at the Court. The RO construed a VA From 21-526b, received September 10, 2012, as a new claim. The Board will not disturb this finding as it is favorable to the Veteran. Because, however, the RO did not assign the maximum disability rating possible or grant the increase in disability rating back to the date of the Veteran's claim in September 2008, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The issue on appeal is rephrased on the title page accordingly. A review of the Virtual VA paperless claims processing system does not reflect any additional records that are not associated with the paper claims file. 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. REMAND In a February 2013 Memorandum Decision, the Court vacated the March 2012 Board decision that denied an increased rating in excess of 10 percent for flat feet, and remanded the matter to the Board for further development. [As noted above, the Veteran has since been assigned a 30 percent rating for flat feet]. Specifically, the Court found that the Board's statement of reasons and bases were inadequate because it did not address whether he suffered from other symptoms that could be separately rated. With regard to "other symptoms," the Court specifically found that the medical evidence was conflicting as to whether the Veteran's metatarsalgia diagnosis was a new diagnosis or whether it was related to his service-connected pes planus. The Court cited to 38 C.F.R. § 4.2 and stated that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." For this reason, the Court found the Board decision inadequate. With regard to "applicability of other diagnostic codes," the Court found that the Board's failure to apply Diagnostic Codes 5277 and 5284 as harmless error because the Veteran failed to demonstrate that any error was prejudicial. The Court noted that the Board applied the Diagnostic Code specifically applicable to flatfeet when it determined the appropriate disability compensation rating for the Veteran's bilateral flatfoot condition. In light of the Court's remand, the Board determines that another examination is warranted to address the likelihood that the Veteran's diagnosis of metatarsalgia warrants a separate disability rating related to the pes planus. Additionally, the RO should attempt to obtain any previously unobtained clinical records pertinent to the present appeal. 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. Ask the Veteran if he has received any VA, non-VA, or other medical treatment that is not evidenced by the current record. Provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file. Obtain these records and associate them with the claims folder. If the records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 2. Then, the RO should schedule the Veteran for a VA examination in order to ascertain the current severity of the service-connected flat feet and must list all symptoms related to the flat feet. The examiner must also answer the following questions: (i) Does the Veteran currently have a diagnosis of metatarsalgia? (ii) If so, is it at least as likely as not (i.e., 50 percent probability or greater) that the metatarsalgia is related to his service-connected pes planus? An explanation must be provided for any opinion or conclusion expressed. The claims folder should be made available to the examiner for review. Any indicated testing also should be performed. The examiner should elicit from the Veteran and record a complete clinical history. Detailed clinical findings should be recorded in order facilitate the rating of the service-connected disability in terms of the applicable criteria. 3. Readjudicate the claim in light of the additional evidence obtained. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. The Veteran 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). _________________________________________________ SARAH B. RICHMOND 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).