Citation Nr: 1331047 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-33 718A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to an increased rating in excess of 50 percent for service-connected post-operative residuals, excisions of neuromas, bilateral, with tender scar of the left foot and bilateral hammertoe deformities, toes 2 through 5, hereafter referred to as a bilateral foot disability. 2. Entitlement to a total disability evaluation due to individual unemployability based on service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to January 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran was afforded a Travel Board hearing in November 2011. A transcript is of record. An April 2012 Board decision denied entitlement to an increased rating for the bilateral foot disability, and a separate 10 percent rating was also granted for a painful scar of the third metatarsal, left foot. In that decision the Board also referred the issue of TDIU to the RO for appropriate action. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) In an October 2012 Order, the Court granted an amended joint motion for remand, vacating the Board's April 2012 denial of an increased rating for the bilateral foot disability and remanding for additional proceedings. The joint motion also indicated that the Board erred in referring rather than remanding a TDIU issue 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 the October 2012 joint motion for remand, the Court determined that the Board erred in failing to provide an adequate statement of reasons and bases for denying the claim. The appeal stated that the Board's decision failed to discuss all potentially relevant diagnostic codes and to support its selection with sufficient reasons and bases when it considered that a rating in excess of 50percent was not warranted for the service-connected foot disabilities. Specifically, the Board found the Veteran's service-connected bilateral foot disability "has been rated as 50 percent disabling, which is the maximum schedular rating allowed for any foot disability under the applicable schedule of ratings for the feet. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284." The Board also determined that the facts either did not permit the application of these other codes or that they were of no benefit to Veteran. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). The Board's analysis was deficient because it failed to specify which diagnostic code appellant's bilateral foot disability was being rated under. Moreover, the Board's analysis did not provide an adequate discussion of whether a higher rating was warranted pursuant to any other rating criteria, such as 38 C.F.R. § 4.71a, Diagnostic Code 5284. Although the Board cited to Diagnostic Code 5284, it failed to discuss whether appellant could obtain separate ratings for each foot, potentially producing a higher overall rating. The joint motion noted that remand was required for the Board to clarify the diagnostic codes under which appellant's service-connected bilateral foot disorder was rated. The Board was also specifically to consider the applicability of Diagnostic Code 5284, to the extent appellant could be entitled to separate ratings for each foot, potentially producing a higher overall rating. In reviewing this claim, the Board notes that the Veteran was last examined by the VA in August 2006. Given that over seven years have passed since the most recent VA compensation examination, and the Veteran has asserted worsening, the evidence has become stale, at least as it pertains to the current level of disability. Therefore, the Board finds that the Veteran should be afforded a new VA compensation examination to assess the current degree of disability of her bilateral foot disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Remand is also required to assist the Veteran in obtaining any outstanding relevant private treatment records. To aid in adjudication, any subsequent VA medical records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, in view of the foregoing discussion, and because the Board is bound by the determinations of the Court in its October 2012 order, the case is REMANDED to the RO for the following action: 1. The RO should contact the Veteran, and after obtaining the appropriate waivers, the RO shall attempt to obtain all relevant VA medical records, generated since the time of the August 2006 VA examination, and any other medical records as may be available from private sources that are identified by the Veteran. 2. After all records and/or responses are received, the RO should arrange for the Veteran to undergo an appropriate VA examination to determine the current nature and severity of her service-connected bilateral foot disability (post-operative residuals, excisions of neuromas, bilateral, with tender scar of the left foot and bilateral hammertoe deformities, toes 2 through 5). The examiner should review the claims folder. A rationale for all opinions must be provided. All indicated studies, including X-rays and range of motion studies in degrees, should be conducted. The report should specifically address the following: a) Set forth all current complaints, findings and diagnoses pertaining to the right and left feet. b) Provide range-of-motion and repetitive- motion findings of the feet. c) Describe findings as to any weakness, fatigability, incoordination, or excess motion. d) Describe the presence or absence of pain, as well as functional impairment. e) State what impact, if any, the bilateral foot disability has on the Veteran's employment and daily living activities and whether such disability has resulted in any periods of hospitalization. The examiner is requested to provide an opinion as to whether it is his/her opinion that the Veteran's bilateral foot manifestations are best described as slight, moderate, or severe. 3. Upon completion of the above, the RO should readjudicate the issue on appeal in addition to the issue of TDIU. If the claim is not granted in full, the Veteran and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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 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). _________________________________________________ JAMES L. MARCH 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).