Citation Nr: 1331187	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  10-04 384A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for radiculopathy of the lower extremities, to include as secondary to service-connected mechanical low back pain.  

2.  Entitlement to service connection for diabetes.

3.  Entitlement to service connection for diabetic retinopathy. 

4.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for bilateral hearing loss.  

5.  Entitlement to a rating in excess of 10 percent prior to August 31, 2010, in excess of 20 percent prior to July 8, 2011, and in excess of 40 percent thereafter for mechanical low back pain.

6.  Entitlement to a compensable rating for the period prior to August 31, 2010, and in excess of 10 percent thereafter for bilateral pes planus with metatarsalgia.     

7.  Entitlement to special monthly compensation (SMC) based on the need for aid and attendance by another person or due to being housebound.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel


INTRODUCTION

The Veteran served on active duty from November 1985 to October 1990. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and August 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The March 2009 rating decision granted an increased rating of 10 percent (effective July 28, 2008) for mechanical low back pain and denied claims for a compensable rating for pes planus with metatarsalgia and for serve connection for diabetes and diabetic retinopathy.  This decision also denied a claim for entitlement to SMC and reopened and denied a claim for service connection for bilateral hearing loss.  The August 2009 rating decision denied service connection for radiculopathy of the lower extremities, to include as secondary to the service connected mechanical low back pain.  

Interim rating decisions have increased the ratings for mechanical low back pain to 20 percent effective August 31, 2010, and 40 percent effective July 8, 2011, and the rating for bilateral pes planus with metatarsalgia to 10 percent effective August 31, 2010.  The Veteran remains in disagreement with the ratings assigned for these disabilities despite these interim decisions, and as these rating increases were not assigned effective from the date of the claim for increase but the dates set forth above, there is for consideration entitlement to a rating in excess of 10 percent prior to August 31, 2010, in excess of 20 percent prior to July 8, 2011, and in excess of 40 percent thereafter for mechanical low back pain and entitlement to a compensable rating prior to August 31, 2010, and in excess of 10 percent thereafter for bilateral pes planus with metatarsalgia.  AB v. Brown, 6 Vet. App. 35 (1993). 

In his June 2010 substantive appeal (VA Form 9), the Veteran requested a Board video-conference hearing before a Veterans Law Judge.  In a December 2011 letter, he was notified that his requested hearing had been scheduled for January 23, 2012.  However, in correspondence received on January 24, 2012, the Veteran's representative indicated that the Veteran had contacted him on January 5, 2012, and requested that his Board hearing be cancelled.  Therefore, the Board finds that the Veteran has withdrawn his request for a Board hearing.  38 C.F.R. § 20.704(e) (2013).

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA claims file contains VA treatment records dated through July 2011 as well as copies of the July 2011 and August 2011 VA examination reports.  While such were added to Virtual VA in May 2013, such were explicitly considered by the agency of original jurisdiction (AOJ) in the statements of the case and supplemental statements of the case issued during the course of the appeal.

The issues of entitlement increased ratings for mechanical back pain and bilateral pes planus with metatarsalgia, entitlement to service connection for radiculopathy of the lower extremities, and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.



FINDINGS OF FACT

1.  In a statement received in June 2011, the Veteran withdrew his appeal with respect to the claims for service connection for diabetes and diabetic retinopathy.   

2.  In a final April 1991 rating decision issued in May 1991, the Veteran's claim for service connection for bilateral hearing loss was denied. 

3.  Evidence added to the record since the May 1991 rating decision is duplicative, cumulative, and redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for bilateral hearing loss.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the Veteran with respect to the issue of entitlement to service connection for diabetes have been met.  38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013).

2.  The criteria for withdrawal of a substantive appeal by the Veteran with respect to the issue of entitlement to service connection for diabetic retinopathy have been met.  38 U.S.C.A. §§ 7104, 7105(d)(5) (West 2002 & Supp. 2012); 38 C.F.R. 
§§ 20.202, 20.204 (2013).

3.  The May 1991 rating decision that denied the Veteran's claim for service connection for bilateral hearing loss is final.  38 U.S.C. § 4005(c)(1988) [38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1990) [38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013)]. 

4.  New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

Here, the Veteran indicated in a statement received in June 2011 that he wished to withdraw his appeal with respect to his claims for service connection for diabetes and diabetic retinopathy.  Hence, there remain no allegations  of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to such issues and they are dismissed.

II.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. 

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that:  (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Pertaining to the Veteran's application to reopen his claim for entitlement to service connection for bilateral hearing loss decided herein, an October 2008 letter, sent prior to the March 2009 unfavorable rating decision that reopened and denied the claim, advised him that his claim had previously been denied in a May 1991 decision on that basis that his bilateral hearing was within normal hearing limits for VA purposes.  This letter also provided him with the definition of new and material evidence and the criteria governing service connection.  As such, this letter was compliant with Kent, supra.  The letter also notified him of his and VA's respective responsibilities in obtaining evidence and information in support of his claim.  Additionally, the October 2008 letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

Relevant to the duty to assist, the Veteran's service treatment reports (STRs) and  post-service VA treatment records and VA examination reports dated through August 2011 have been obtained and associated with the claims file.  The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal.  In this regard, the Board observes that the Veteran reported at an August 2010 VA examination that he was in receipt of Social Security Administration  (SSA) disability benefits; however, he indicated that he was deemed to be unemployable as a result of his back, shoulder, and bilateral foot disorders.  Therefore, as the Veteran's claim for SSA disability benefits was based on disorders which are not adjudicated herein, such records are irrelevant to the instant claim and need not be obtained.  See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) (relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim).

The Board notes that the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim.  See 38 C.F.R. § 3.159(c)(1),(2) and (3).  Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion.  As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with his appeal.  However, the Board notes that he was, in fact, provided with a VA examination in August 2011, which failed to reveal a bilateral hearing loss disability for VA purposes.  In this regard, the Board finds such VA examination to be adequate as it included an interview with the Veteran, a review of the record, and an audiological examination with audiometric testing.  

In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose with respect to the matters adjudicated in this decision.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case with respect to the claims adjudicated herein, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims adjudicated herein.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001

III.  Analysis

The Board has reviewed all of the evidence of record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim adjudicated herein.   

Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a).

An April 1991 rating decision, in pertinent part, denied the Veteran's claim for service connection for bilateral hearing loss.  The Veteran was advised of this decision in May 1991, but did not file a timely notice of disagreement.  Therefore, the May 1991 decision is final as to the issue of entitlement to service connection for bilateral hearing loss.  38 U.S.C. § 4005(c)(1988) [38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012)]; 38 C.F.R. §§ 3.104, 19.129, 19.192 (1990) [38 C.F.R. 
§§ 3.104, 20.302, 20.1103 (2013)].  In this regard, the Board has considered 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, no records were received within the one year appeal period following the May 1991 rating decision.  As such, this regulation is inapplicable.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).  

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Id.   

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Notwithstanding the decision by the RO in the March 2009 rating decision to reopen the claim for service connection for bilateral hearing loss, the Board is required to independently consider the question of whether new and material evidence has been received to reopen the claim.  See 38 U.S.C.A. § 7104(b); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). 

The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385. 

The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service.  Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992).  The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA's definition of disability after service.  Hensley, supra, at 159. 

The May 1991 rating decision denied the claim for service connection for bilateral hearing loss based on a determination that the Veteran's hearing was considered within normal limits for VA (compensation) purpose.  This decision was based on review of the STRs, as no post-service treatment repots were of record at the time of this decision.  
Review of the STRs, to include the reports from the September 1990 separation examination, do not reveal a evidence of hearing loss, to include as defined by 38 C.F.R. § 3.385.  In this regard, at the September 1990 separation examination, audiometric testing demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
10
5
15
10
LEFT
15
5
10
10
5

The evidence received since the May 1991 rating decision includes reports from VA audiometric testing in August 2011, which did not reveal hearing loss disability as defined by 38 C.F.R. § 3.385.  In this regard, the audiometric testing conducted in August 2011 demonstrated pure tone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
25
20
25
LEFT
20
20
30
25
30

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 94 percent in the left ear.

There is otherwise no clinical evidence of current bilateral hearing loss disability for the purpose of VA compensation benefits, which was the basis for the prior denial.   Furthermore, the Veteran's statements that he currently has bilateral hearing loss are duplicative of his claims at the time of the May 1991 rating decision.  Moreover, any statements in this regard would not be sufficient to establish a current hearing loss disability for the purpose of VA compensation benefits.  Specifically, the Veteran, as a lay person, is not competent to offer a diagnosis of bilateral hearing loss as he does not possess the requisite specialized knowledge.  In this regard, such a diagnosis requires the administration and interpretation of audiological test results.  Therefore, as such is a complex medical question, the Veteran is not competent to offer a diagnosis of bilateral hearing loss.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  

Thus, when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for bilateral hearing loss.  Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claim for service connection for bilateral hearing loss, and the Veteran's application to reopen such claim is denied.


ORDER

The appeal with respect to the issue of service connection for diabetes is dismissed. 

The appeal with respect to the issue of service connection for diabetic retinopathy is dismissed.    

As new and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss, the appeal with respect to this issue is denied.


REMAND

Although the Board regrets the additional delay, a remand is necessary with respect to the remaining issues to ensure that due process is followed and that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

As indicated previously, the Veteran reported at an August 2010 VA examination that he was in receipt of Social Security Administration  (SSA) disability benefits as he was deemed to be unemployable as a result of his back, shoulder, and bilateral foot disorders.  As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim.  See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). 

Additionally, the Board notes that the Veteran was last afforded VA compensation examinations to assess the severity of his service-connected back and foot disabilities over two years ago in July 2011, and in an August 2013 brief presented to the Board, the Veteran's representative has suggested that the these disabilities have increased in severity since this examinations.  Given the time that has elapsed since the Veteran was last afforded such examinations and the assertions of the Veteran's representative, the Veteran should also be afforded contemporaneous VA examination(s) so as to determine the current nature and severity of his service-connected back and foot disabilities.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. 
§ 3.326; see also Green v. Derwinski, 1 Vet. App. 121, 124(1991); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).     

The Board notes that the Veteran's claim for service connection for radiculopathy of the bilateral lower extremity is inextricably intertwined with his claim of entitlement to an increased rating for his back disability.  In this regard, the rating criteria relevant to evaluating such disability requires that all associated neurological impairments be separately evaluated.  Therefore, in assessing the severity of the Veteran's back disability, the VA examiner will address whether such results in radiculopathy of the bilateral lower extremities.  Likewise, the Veteran's claim for SMC is inextricably intertwined with his claims for increased ratings as, if an increased rating is awarded, such may result in schedular ratings warranting payment at the housebound rate, or such examinations may demonstrate a factual need for aid and attendance or show that the Veteran is, in fact, housebound.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue).  Therefore, consideration of these issues is deferred pending the outcome of the Veteran's increased rating claims. 

Additionally, while on remand, the AOJ should contact the Veteran and request that he identify any VA or non-VA treatment providers who have provided relevant treatment.  Any treatment records identified, not currently of record, should be obtained for consideration in the Veteran's appeal.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has rendered relevant treatment.  After obtaining any necessary authorization forms, all identified treatment records should be obtained.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2)  and 38 C.F.R. § 3.159(e). 

2.  Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2)  and 38 C.F.R. § 3.159(e). 

3.  After obtaining any outstanding records, the RO is to arrange for a VA examination(s) to determine the severity of his service-connected mechanical low back pain and bilateral pes planus with metatarsalgia.   Prior to the examination, the claims files, to include a copy of this Remand, must be made available to the examiner(s).  All indicated tests and studies are to be performed.  Any indicated evaluations, studies, and tests should be conducted.  The claims folder must be made available to the examiner for review prior to the examination, and the examination report should reflect that review of the record was accomplished. 

The examiner(s) should identify the nature and severity of all manifestations of the Veteran's service-connected back and foot disabilities, to include any neurological impairment associated with his back disability.  The examiner(s) should specifically indicate whether the Veteran's back disability results in radiculopathy of the either of the bilateral lower extremities and, if so, the nature and severity of such impairment.  The examiner(s) should specifically comment as to whether there is "moderate" or "severe" foot disability.  The examiner(s) must also comment on the impact of these disabilities on his employability, to include whether such renders him unemployable.

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  To the extent any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs