Citation Nr: 1326604	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-40 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to a rating higher than 30 percent for bilateral pes planus (flatfeet).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his daughter


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from March 1973 to June 1976.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in November 2010.  A transcript of the hearing is associated with the claims file.  During the hearing, he submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304.

This appeal was processed in part by using the Virtual VA paperless claims processing system.  The documents contained in this system were reviewed in conjunction with this appeal.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

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

At his November 2010 hearing, the Veteran indicated that his bilateral pes planus had worsened since his last VA examination in November 2009.  As such, a new examination is necessary to understand the current level of impairment.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for an examination to determine the current severity of his bilateral pes planus.  The claims folder should be made available to the examiner and reviewed in conjunction with the examination.  The examiner should report all current findings related to bilateral pes planus and provide an opinion as to the current severity of the disability.  The examiner should specifically address:

a.  Whether there is marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achilles on manipulation, that is not improved by orthopedic shoes or appliances.

b.  Whether the Veteran's bilateral pes planus is equivalent to moderately severe or severe bilateral foot injuries or has resulted in actual loss of use of one or both feet.

c.  The extent to which the Veteran's bilateral foot disability affects his ability to secure and follow a substantially gainful occupation.

Any opinion should be accompanied by a clear rationale consistent with the evidence of record.  If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative.

2.  Thereafter, the originating agency should readjudicate the claim of entitlement to an evaluation in excess of 30 percent for bilateral pes planus in light of the additional evidence obtained.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case.  An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

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).




_________________________________________________
J. A. MARKEY
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).