Citation Nr: 1325577 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-29 887 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a bilateral pes planus. 2. Entitlement to service connection for arthritis of the bilateral feet and ankles. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active military duty from February 1979 to February 1983. This appeal originally came to the Board of Veterans' Appeals (Board) from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, inter alia, denied service connection for pes planus. In September 2010, the Board issued a decision denying the Veteran's claim for entitlement to service connection for pes planus. In a March 2012 memorandum decision, the Court vacated the Board's September 2010 decision, in part, and remanded the case for readjudication in compliance with directives specified in the Court's decision. In consideration of the Court's memorandum decision, and for clarity purposes, the Board has separated the Veteran's bilateral foot claim into two separate issues. The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to head trauma, and entitlement to a total disability rating due to individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 In July 2004, the Veteran filed a claim indicating that he has a bilateral foot disorder due to pes planus and arthritis. The RO and the Board subsequently adjudicated the claim as service connection for pes planus. The RO and the Board determined that service connection for pes planus was not warranted as there was clear evidence that the Veteran had pes planus upon enlistment. In a March 2012 memorandum decision, the Court found that the Veteran had filed a claim for benefits for a foot condition, and that the RO had improperly limited the scope of the Veteran's claim to only pes planus, and that the Board perpetuated that error by failing to discuss the Veteran's degenerative joint disease of the feet and ankles in its decision. The Board notes that since the Board's decision denying the Veteran's claim in September 2010, the Veteran has underwent two VA examinations dated in July 2011 and March 2012. The Board notes that neither VA examination is adequate for rating purposes concerning the issues of entitlement to service connection for pes planus and degenerative joint disease of the feet and ankles. In the July 2011 VA examination, the Veteran denied any foot problems prior to enlistment; however, the Veteran's enlistment examination included a diagnosis of pes planus. In the March 2012 VA examination, the examiner noted the Veteran has never had a foot disorder, other than flatfoot. However, VA progress notes dated in October 2008 indicate a diagnosis of degenerative joint disease of the feet and ankles. Considering the inadequacies of these VA examinations, the Board finds an additional VA foot examination is necessary to determine if there is a diagnosis of arthritis of the feet and ankles, and, if so, whether that disorder is caused or aggravated by service or service-connected disorders. The Board recognizes that these examinations were performed after the last adjudication of the claim on appeal, and that neither the Veteran nor his representative have waived referral of this evidence to the agency of original jurisdiction for initial review. However, as this claim is being remanded for further development, the Board finds no prejudice in reviewing this evidence and proceeding with the issuance of the remand. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain a copy of all updated VA treatment records and any other outstanding records pertinent to the Veteran's claims. 2. After all the available records have been associated with the claims folder, to the extent available, schedule the Veteran for appropriate VA examination for his feet and ankles. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. Following a review of the relevant evidence in the claims file, obtaining a complete history from the Veteran, a clinical evaluation, and any tests that are deemed necessary, the examiner is asked to answer the following: a) Identify whether the Veteran has a current diagnosis of degenerative joint disease involving his bilateral feet and/or ankles, as shown by objective testing. b) If the examiner does not find a diagnosis of degenerative joint disease of either the feet or ankles is warranted, the examiner must address the October 2008 VA progress note that includes a diagnosis of symptomatic degenerative joint disease of the feet and ankles. c) If degenerative joint disease of either the feet and/or ankles is diagnosed, is it at least as likely as not (50 percent or greater probability) that any diagnosed foot and/or ankle condition first had onset during the Veteran's period of service or is otherwise related to the Veteran's military service? d) Is it at least as likely as not (50 percent or greater probability) that any diagnosed foot and/or ankle condition, including pes planus and/or degenerative joint disease, was caused or aggravated by any of the Veteran's service-connected disabilities, specifically his right knee disability? The examiner should provide a complete rationale for any opinion provided. 3. The RO or the AMC should then adjudicate the claims with consideration of the evidence added to the record since the most recent supplemental statement of the case. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action 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). _________________________________________________ MICHAEL LANE 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).