Citation Nr: 1328244 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-36 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a disability rating greater than 10 percent for service-connected bilateral pes planus. 2. Entitlement to service connection for hypertension. 3. Entitlement to an effective date earlier than June 11, 2009, for the grant of service connection for bipolar disorder. 4. Entitlement to a compensable rating for bipolar disorder prior to April 8, 2013, and a rating higher than 30 percent thereafter, to include entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, dated April 2007 and May 2010. The Veteran presented sworn testimony in support of his appeal during an April 2012 hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing has been associated with the file. In March 2013, the Board reopened the claim for service connection for hypertension and service connection for bipolar disorder and remanded all remaining issues on appeal to the AMC. In April 2013, the AMC granted service connection for bipolar disorder, effective June 11, 2009, and assigned a noncompensable rating prior to April 8, 2013, and a 30 percent rating thereafter. This award of benefits satisfies the Veteran's appeal on the issue of service connection for bipolar disorder. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). A statement from the Veteran challenging the effective date and initial disability ratings assigned in the April 2013 rating decision was subsequently received in April 2013. The Veteran also alleged unemployability for the last thirty years due to his bipolar disorder. The Veteran's April 2013 statement expresses clear disagreement with the RO's adjudicate determinations and constitutes valid NOD with the effective date and disability ratings assigned in the April 2013 rating decision. See Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Palmer v. Nicholson, 21 Vet. App. 434, 436 (2007). It also raises the issue of entitlement to a TDIU as a part of the claim for higher initial ratings for bipolar disorder. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (the Board must remand, rather than refer, the TDIU component of an increased rating claim to the AOJ for proper development and adjudication). Consequently, the issues of (1) entitlement to an effective date earlier than June 11, 2009, for the grant of service connection for bipolar disorder; and (2) entitlement to a compensable rating for bipolar disorder prior to April 8, 2013, and a rating higher than 30 percent thereafter, to include entitlement to a TDIU, are properly on appeal before the Board. The issues of entitlement to service connection for hypertension, entitlement to an earlier effective date for the grant of service connection for bipolar disorder, and entitlement to higher initial disability ratings for bipolar disorder, including entitlement to a TDIU, are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran's bilateral pes planus is manifested by decreased medial longitudinal arches of the feet, chronic aching and pain, additional pain upon prolonged standing or walking, mild to moderate weakness and loss of endurance, and the regular use of a cane for ambulation. CONCLUSION OF LAW The criteria for a 30 percent rating for service-connected bilateral pes planus have been approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.71a, Diagnostic Code 5276 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties A. The Veterans Claims Assistance Act of 2000 (VCAA) The Department of Veterans Affairs (VA) has a duty to notify the claimant of the information and evidence that is necessary to substantiate the claim and a duty to assist claimants in obtaining that evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). Here, a letter dated July 2006 informed the Veteran was notified of the need to submit evidence showing that the severity of his service-connected pes planus had increased and the effect that this worsening had on his employment. See 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); 38 C.F.R. § 3.159(b); see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102-03 (2010). The duty to assist has also been met as VA has obtained the Veteran's service records, VA treatment records, and private treatment records, and Social Security Administration (SSA) disability records, and VA examination reports were obtained in August 2006 and January 2011 and reviewed in support of the Veteran's claims. See 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c). As VA treatment records dated from May 2013 show that the Veteran's pes planus has not has not materially changed since the January 2011 VA examination, and the August 2006 and January 2011 VA examination reports show full consideration of the Veteran's relevant medical history and describe the Veteran's disability in sufficient detail, he has been provided with a thorough and contemporaneous VA examination. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (holding that VA's should provide a new examination when the evidence is too old for an adequate evaluation of the Veteran's current condition); see also VAOPGCPREC 11-95 (1995) (advising that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). . Therefore, VA's duties to notify and assist have been met. As any additional development efforts would serve no useful purpose, there is no prejudice to the Veteran in adjudicating this appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). B. Duties of Hearing Officer "It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position [on appeal]." 38 C.F.R. § 3.103(c)(2). This regulation imposes "two distinct duties" on hearing officers: (1) "[A] duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim," and (2) a duty to "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). Those requirements are designed to "assure [the] clarity and completeness of the hearing record." Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) (2005)); see also Bryant, 23 Vet. App. at 499. Here, the VLJ clarified the issues on appeal and sought to identify any overlooked or outstanding evidence. The hearing was focused on the elements necessary to substantiate the claims, and the Veteran's testimony on the symptoms and the extent of functional impairment caused by his bilateral pes planus demonstrated actual knowledge of the elements necessary to substantiate the claim. The Veteran and his representative have not alleged any failure to comply with 38 C.F.R. § 3.103(c)(2) or any prejudice in the conduct of the April 2012 Board hearing. The VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and no prejudice will result from adjudication of the Veteran's claims based on the current record. C. Compliance with Remand Orders VA has a duty to ensure substantial compliance with the terms of remand orders. Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2013, the Board directed the RO to obtain the Veteran's outstanding VA treatment records and determine whether further evidentiary development was required following de novo review. Then, the RO was instructed to issue a supplemental statement of the case (SSOC) to the Veteran and his representative with an opportunity to respond. The AMC, acting on behalf of the RO, obtained the Veteran's relevant VA records. As no further evidentiary development was needed, the Veteran's claim was readjudicated in a May 2013 SSOC and a copy was sent to the Veteran and his representative with 30 days to respond. As no response was received within the 30 day period, the appeal was returned to the Board in June 2013. As all actions specified in the March 2013 remand directives on the claim for an increased rating for pes planus have been accomplished, the Board is satisfied that the RO has substantially complied with the Board's March 2013 remand directives on the claim adjudicated below. II. Evidentiary Standards The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board's responsibility to evaluate the evidence applies to both medical evidence and competent lay evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In evaluating lay evidence, the Board will determine, on a case-to-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence is competent. Kahana, 24 Vet. App. at 433 n.4. While lay witnesses are not competent to offer expert medical testimony, such witnesses are fully competent to testify as to their firsthand observations of the Veteran's visible symptoms. Chotta v. Peake, 22 Vet. App. 80, 84 (2008); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (lay persons are competent to provide information regarding visible, or otherwise observable symptoms of disability). In increased rating claims, an appellant's lay statements alone may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores, 24 Vet. App. at 102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons or bases for its findings and conclusions on all material issues of fact and law, there is no need to discuss each piece of evidence submitted by the Veteran, or on his behalf, in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (explaining that the Board must review the entire record, but need not explicitly discuss every individual piece of evidence in the record). Accordingly, the analysis below will focus on an evaluation of the material evidence of record and whether this evidence substantiates the claims on appeal. Therefore, the Veteran should not assume that the Board has overlooked evidence that is not explicitly mentioned in the following discussion. See generally Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). III. Increased Rating The Veteran's service-connected pes planus is currently rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276. The Veteran contends that his problems with his feet have become increasingly severe and that, consequently, a higher rating is warranted. A. Law and Regulations Governing Assignment of Disability Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation under 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. However, as discussed below, because the evidence of record does not demonstrate diverse symptoms meeting the criteria for different ratings, the application of staged ratings is inapplicable in this case. B. Rating Disability of the Musculoskeletal System Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Id. When evaluating disability of a joint, VA must consider evidence of limited movement, excess movement, weakened movement, excess fatigueability, incoordination, painful motion, swelling, deformity or atrophy of disuse, instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). VA must also consider further limitation of functional ability during flare-ups or upon repetitive use. See DeLuca, 8 Vet. App. at 206; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Where the diagnostic code is not predicated on the loss of range of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). C. Application of Regulations Governing Schedular Evaluations of Disabilities of the Feet The Veteran's pes planus is currently rated under the diagnostic code for acquired flatfoot, 38 C.F.R. § 4.71a, DC 5276. Where the disability is pronounced and manifested by marked pronation (i.e., movement of the foot toward the midline), extreme tenderness of plantar surfaces of the feet, marked inward displacement, severe spasm of the tendo Achilles on manipulation, and is not improved with orthopedic shoes or appliances, a 50 percent bilateral rating and 30 percent unilateral rating is assigned. Id. If the Veteran's pes planus is best described as severe, with objective evidence of marked deformity such as pronation or abduction (movement of a body part away from the midline), accentuated pain on manipulation and use, indications of swelling on use, and characteristic callosities, a 30 percent bilateral rating and 20 percent unilateral rating is will be assigned. Id. A 10 percent rating is assigned where the bilateral or unilateral flat foot disability is moderate, with the weight-bearing line over the medial to great toe, inward bowing of the tendo achillis, and pain on manipulation and use. Id. A noncompensable rating is assigned where there is only a mild flat foot disability that is relieved by a built-up shoe or arch support. Id. A February 2006 VA primary care note shows that the Veteran complained of pain at the sole of his right foot and was referred to podiatry for further evaluation. At the April 2006 podiatry consultation, the Veteran described a painful, burning, and tingling sensation in both feet, worse on the right, centered on the medial arch, at a level of severity of 4 out of 10 while resting and 7 out of 10 when standing. Plantar hyperkeratosis was noted at the right plantar medial arch at the level of the first metatarsal, mid-shaft. The medial arch was decreased bilaterally. The Veteran was able to heel rise without pain and with eversion bilaterally. He was diagnosed with flexible bilateral pes planus and given felt arch inserts. At a follow-up podiatry consultation in July 2006, he stated that he got the most relief from rest and the inserts were not helping his symptoms of pain and burning. The VA podiatrist added Spenco inserts in addition to the felt arch inserts. At the next appointment in October 2006, the Veteran reported relief from symptoms of pain and burning while using the felt arch inserts. The Veteran was provided with a VA examination in August 2006. The Veteran reported pain at the bilateral longitudinal arches, at the mid-foot, that increased to moderate pain when subjected to prolonged periods of walking or standing. He ambulated with a cane and normal shoes, and reported that he had to stop working because of pain in the bilateral longitudinal arches and heels. Bilateral foot surgery was performed in the late 1990s, "with no lasting results." The Veteran reported no use of narcotics for the pain. On examination, the examiner noted "pes planus bilaterally, moderate in character." Range of motion of the ankle was normal and muscle power of the anterior and posterior tibialis was normal, but he exhibited moderate weakness and moderate lack of endurance secondary to pes planus. The Veteran was diagnosed with pes planus of the bilateral feet, moderate and chronic in character, with mild to moderate aching and pain about the middle third of the foot on the longitudinal arch sign bilaterally. A VA medical opinion was obtained on the occupational impairment caused by the Veteran's pes planus in April 2009. The examiner found that it was less likely than not that the Veteran's service-connected pes planus was solely responsible for his long-term unemployment as disability records from the Social Security Administration (SSA) records show that he was placed on disability due to mental illness and his "psychiatric condition certainly plays a major role in his functional abilities." In May 2010, the Veteran sought additional VA treatment for severe intermittent pain in the balls of his feet, bilaterally, worse when walking and alleviated by rest. The Veteran rated the level of pain a 10 out of 10 at its worst but denied any pain at the time of the evaluation. He also reported a history of tingling and numbness and a surgical history of dorsal exostectomy of the bilateral feet in the late 1980s. No edema or hyperkeratosis was seen. The Veteran's gait was steady and unassisted, but extra wear on the lateral side of his shoes was noted, bilaterally. Muscle strength was recorded at 4/5 for all pedal groups and muscle mass was within normal limits bilaterally. There was no pain with range of motion and no pain with palpitation of the peroneal tendon or the posterior tibial tendon bilateral. The Veteran had decreased medial arches bilaterally. The Veteran continued to seek treatment for bilateral foot pain located at the balls of his feet in July 2010, but left suddenly without treatment. In September 2010, he sought emergency treatment for several condition, including swelling of the feet of unknown etiology. The Veteran was provided with a second VA examination in January 2011. He complained of pain at the dorsal and plantar surface, more on the right than the left, and was ambulating with a cane. He stated that the inserts he received did not work but that shoes with built-in arch supports did alleviate some symptoms. On examination, there was no gross deformity of the hindfoot or forefoot. Inspection of the longitudinal arch showed a moderate drop in the middle third longitudinal arch plantar fascia at the level of the navicular cuboid bone. The Veteran was observed to have moderate pes planus, bilaterally. The examiner found that muscle power was reduced to 4/5 at extensor brevis muscle, secondary to pes planus. There was no localized pain to palpitation or hard or soft calluses. The examiner noted that symptoms of mild to moderate pain were present with prolonged standing or walking. The Veteran also exhibited mild to moderate weakness and lack of endurance of the bilateral feet secondary to pes planus. A VA podiatry treatment note dated May 2013 shows that the Veteran experienced pain with palpitation of the Achilles tendon and with dorsiflexion along the Achilles tendon against resistance on the right. There was also decreased dorsiflexion of the foot with knee extended, bilaterally. There was no pain on palpitation of the posterior tibial tendon or peroneal tendon, bilaterally, and no pain with passive motion of the bilateral ankle or midfoot. The Veteran had a decreased medial arch, bilaterally. X-rays dated from April 2013 were reviewed and showed a mild to moderate pes planus deformity of the foot. Lastly, the Veteran has submitted multiple lay statements attesting to his use of a cane. He has also repeatedly asserted that he is unable to work due to his service-connected pes planus due to the limitations the condition puts on his ability to stand for long periods of time. The Board finds the Veteran is entitled to a 30 percent rating for bilateral pes planus under DC 5276 as although there is no marked deformity, plantar hyperkeratosis was noted in May 2010; and swelling of the feet was also reported in September 2010 albeit of unknown etiology. Notably, May 2010 podiatry notes show that the Veteran's shoes had signs of additional wear along the sides although his gait has been described as normal. The Veteran also has consistent reports of pain on manipulation with weight bearing and use of the feet when engaging in prolonged walking or standing although this symptomatology is contemplated by the current 10 percent rating. Finally, the Board notes that there is evidence of loss of strength and endurance associated with the Veteran's feet. See, e.g., DeLuca, supra. The loss of muscle strength shown in the medical evidence of record is characterized as moderate throughout the period on appeal, and muscle power of the extensor brevis muscle was documented at 4/5, indicating that movement against some resistance is possible. The Board therefore, finds that while the Veteran's pes planus has primarily been described as moderate, the additional findings of weakness and loss of endurance combined with the additional findings as outlined above, more nearly approximate the criteria required for a 30 percent rating. See 38 C.F.R. § 4.7. However, the Board does not find a pronounced degree of bilateral pes planus is shown as defined by the applicable rating schedule criteria such that a 50 percent rating would be in order. See 38 C.F.R. § 4.71a. The Veteran, as a layperson, is competent to testify to his need for a cane and the effect that his pes planus has had on his work stamina. Washington, 21 Vet. App. at 195. The Veteran's statements regarding his use of a cane to walk are consistent with the findings in the medical evidence and thereby credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credible testimony is that which is plausible or capable of being believed; in determining whether written statements are credible, the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). With regard to the occupational impairment caused by bilateral pes planus, the Board does not doubt that the Veteran's foot disability results in some degree of occupational impairment or limitation. However, the records obtained from SSA and the opinion provided by the VA examiner show that the Veteran's bipolar disorder and hypertension have also played a substantial role in his long history of unemployment. Consequently, in analyzing the probative value of the evidence on the extent of occupational impairment caused by the Veteran's pes planus, the Board finds that the Veteran's testimony and statements asserting total occupational impairment as a result of his service-connected pes planus are outweighed by the evidence of other, more significant, documented causes of occupational impairment in the relevant medical reports of record. Kahana, 24 Vet. App. at 433. As a result, the evidence does not warrant consideration of entitlement to a TDIU due to the Veteran's service-connected foot disability. Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (the issue of entitlement to a rating of TDIU is raised whenever a claimant shows intent to seek a higher disability rating and "submits cogent evidence of unemployability"). Furthermore, the issue of TDIU due to pes planus was previously withdrawn by Veteran, as noted in the March 2013 remand order, and entitlement to a TDIU due to service-connected disabilities including the Veteran's recently granted bipolar disorder remains on appeal pending further development, as discussed in the remand order below. The Veteran has also repeatedly alleged that he is entitled to a greater amount of compensation because of the amount of time he has suffered from pes planus since service, but this appeal is limited to consideration of the current severity of the Veteran's service-connected foot disorder, and, furthermore, he has been service-connected and in receipt of compensation for the disorder since March 5, 1978. See Francisco, 7 Vet. App. at 58 (where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern). The Board has considered whether rating the Veteran's condition under other diagnostic codes would result in a rating in excess of 30 percent, but concludes that none would. Disabilities of the foot are rated under Diagnostic Codes 5276 through 5284. Only Diagnostic Code 5278 covering claw foot includes a rating in excess of 30 percent. As the Veteran has never been diagnosed as suffering from claw foot, however, this rating is inapplicable. See also 38 C.F.R. § 4.73, Diagnostic Code 5310-5312 (2012). The Board has also considered whether separate ratings for pes planus may be awarded under any other potentially applicable diagnostic code, such as DC 5277, DC 5279 and DC 5284, but these codes concern symptoms that overlap with the symptoms evaluated under the rating assigned for acquired flatfoot under DC 5276. Other diagnostic codes used to rate disorders of the feet are inapplicable to facts of this case as they do not appropriately describe symptoms actually suffered by the Veteran. Butts, 5 Vet. App. at 538. Lastly, a separate rating is not warranted for the Veteran's surgical scars resulting from his bilateral foot surgery as the existence of two well-healed scars of two and a half inches length are not compensable under the applicable rating criteria for claims filed prior to October 23, 2008, or, in any case, the current rating criteria for skin disorders. 38 C.F.R. § 4.118, DC 7801 to 7804 (2008); 73 Fed. Reg. 54710 (October 23, 2008); see also 38 C.F.R. § 4.118, DCs 7800 to 7805 (2012). E. Extraschedular Consideration In some cases, disability ratings may be referred for consideration of an extraschedular rating assignment. Thun v. Peake, 22 Vet. App. 111 (2008). First, the evidence must present such an exceptional disability picture that the available schedular evaluations for that service-connected disability are shown to be inadequate. Then, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's exceptional disability picture exhibits factors such as marked interference with employment or frequent periods of hospitalization, provided by the regulation as "governing norms." If so, the case will be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the symptoms associated with the Veteran's pes planus are not shown to cause any impairment not already contemplated by DC 5276. The Board acknowledges that the Veteran's pes planus limits his ability to stand for prolonged periods or walk for long distances, which places some limitation on his employment opportunities, but some degree of occupational impairment is contemplated under the criteria for a 30 percent disability rating. The Veteran's pain on use of the feet as well as any functional impairment due to reduced endurance and weakness are contemplated by this rating. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's service-connected foot disability such that referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to a 30 percent rating for bilateral pes planus is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The claim for service connection for hypertension must be remanded as the VA medical opinion obtained in March 2013 is not adequate to resolve the question of service connection for hypertension under the presumptions for chronic diseases, and, furthermore, the examiner did not consider all relevant medical facts of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl, 21 Vet. App. at 123; see also 38 U.S.C.A. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). As the Veteran reports continuing VA medical care, any outstanding VA medical records should be obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). If there are additional private medical records the Veteran wants VA to consider, he should submit the records himself or provide the necessary identifying information and authorization for VA to obtain them. Id. In April 2013, the Veteran filed notice of disagreement with effective date and initial disability ratings assigned in the AMC's April 2013 rating decision granting service connection for bipolar disorder. See Palmer, 21 Vet. App. at 436-37; see also 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. Therefore, on remand, the Veteran should be provided with an SOC on the issues of entitlement to an earlier effective date for the grant of service connection for bipolar disorder, and entitlement to higher initial ratings for bipolar disorder, to include entitlement to a TDIU. Sims v. Shinseki, 578 F.3d 1332, 1335 (Fed. Cir. 2009); Manlincon v. West, 12 Vet. App. 238 (1999) (when an appellant files a timely NOD and there is no issuance of a SOC, the Board should remand, rather than refer, the issue to the RO for the issuance of an SOC); see also 38 U.S.C.A. § 7105(d)(1); 38 C.F.R. § 19.29. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding relevant VA treatment records from the VA Medical Center in North Chicago, and all related clinics. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Ask the Veteran to submit any additional relevant private treatment records that he has in his possession, or to identify (i.e. obtain the names, addresses, and approximate dates of treatment) the private medical care providers that have provided treatment for his hypertension and to furnish signed authorizations for release of these identified records. Make arrangements to obtain all records that are adequately identified and for which signed authorizations have been obtained. 3. Request an addendum to the March 2013 VA hypertension examination report from the same VA examiner, if possible. If the same examiner is not available, a different examiner should be asked to review the claims folder and electronic records file and provide the requested opinions. In providing the following opinions, the examiner must consider the September 1968 service treatment records noting high blood pressure; the Veteran's September 1968 blood pressure readings of 152/92 on September 23, 145-160/90-95 on September 24, and 164/92 and 145/90 on September 25; the post-service blood pressure readings of 132/88 in November 1972 and 140/90 in February 1973, and; the diagnosis of hypertension in August 1975. (i) Is it at least as likely as not (50 percent or greater probability) that hypertension can be identified and the chronicity of the disease established during service or within one year of separation from service? (ii) Is it at least as likely as not (50 percent or greater probability) that hypertension was noted in service or within one year of separation from service and the Veteran had continuous symptoms of hypertension between that time and the current diagnosis? For example, do the September 1968 treatment records noting "high blood pressure" indicate, if not show, hypertension in service and do the post-service blood pressure readings or other symptoms show continuous symptomatology? (iii) Is it at least as likely as not (50 percent or greater probability) that the Veteran's signs, symptoms, medical history, or other evidence show that hypertension had its onset in service? For example, as suggested by the Veteran and his representative, were the elevated readings in service the initial manifestations of hypertension, rather than isolated instances of elevated blood pressure? (iv) Is it at least as likely as not (50 percent or greater probability) that hypertension manifested to a compensable degree within one year of separation, i.e., diastolic pressure was predominantly 100 or more, systolic pressure was predominately 160 or more, or a history of diastolic pressure predominately at 100 was controlled with continuous medication? (v) Is it at least as likely as not (50 percent or greater probability) that hypertension is otherwise linked to military service? A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the physician should so state and explain why an opinion cannot be provided without resort to speculation. 4. The Veteran and his representative must be provided a Statement of the Case on the issues of entitlement to an earlier effective date for the grant of service connection for bipolar disorder, and entitlement to higher initial ratings for bipolar disorder, to include entitlement to a TDIU. If, and only if, the Veteran files a timely substantive appeal should these issues be returned to the Board. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238 5. Finally, readjudicate the Veteran's claim of entitlement to service connection for hypertension. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with a SSOC and allow an appropriate time for a response. Then return the case to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs