Citation Nr: 1331728 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 08-00 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for bilateral pes planus with triple arthrodesis, left foot, recurrent, prior to January 14, 2011. 2. Entitlement to a disability rating in excess of 50 percent for bilateral pes planus with triple arthrodesis, left foot, recurrent, since January 14, 2011. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his wife, and his son ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1955 to July 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which established a temporary total evaluation for convalescence for a service-connected condition; and continued a 30 percent evaluation for bilateral pes planus with triple arthrodesis, left foot, recurrent, and a noncompensable evaluation for post operative tonsillectomy. The claims file was subsequently transferred to the RO in Montgomery, Alabama. In December 2006, the Veteran submitted a notice of disagreement with the continued 30 percent evaluation for his bilateral pes planus. He subsequently perfected his appeal in January 2008. In June 2010, the Veteran presented sworn testimony during a Travel Board hearing in Montgomery, Alabama, which was chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's claims file. In a June 2012 decision, the Board denied a disability rating in excess of 30 percent for the Veteran's service-connected bilateral pes planus with triple arthrodesis, left foot, recurrent, under Diagnostic Code 5276 prior to January 14, 2011, but granted a disability rating of 50 percent, but no higher, for pes planus since January 14, 2011, under the same diagnostic code based on the results of a January 2011 VA feet examination. The Board also remanded the issue of entitlement to a TDIU for additional development. In October 2012, following a September 2012 Joint Motion for Partial Remand (Joint Motion) by the Veteran and VA, the United States Court of Appeals for Veterans Claims (Court) partially vacated the Board's June 2012 decision with respect to the ratings assigned for the Veteran's service-connected bilateral pes planus with triple arthrodesis, left foot, recurrent. The Court remanded that issue to the Board for compliance with the instructions in the Joint Motion. A January 2007 VA treatment record indicated that the Veteran experienced depression secondary to chronic pain in many joints. As such, the issue of entitlement to service connection for depression, to include as secondary to service-connected bilateral pes planus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran initially filed a claim for entitlement to service connection for disabilities of the right and left feet in July 1975. In an October 1975 rating decision, the RO granted entitlement to service connection for "status post operative triple arthrodesis, left foot with amputation of distal phalanx, right great toe," and assigned a less than 10 percent evaluation under Diagnostic Code 5276. In a March 1976 decision, the RO noted that the Veteran underwent a triple arthrodesis of his left foot in October 1974, and developed pes planus secondary to the arthrodesis due to a change in the alignment of the bones in the hind foot. At that time, the RO assigned a separate 10 percent rating for "amputation through proximal interphalangeal joint, right great toe" under Diagnostic Code 5171, in addition to the 10 percent rating for "triple arthrodesis, left foot" under Diagnostic Code 5276. In a June 1976 rating decision, the RO found that the Veteran had two surgical procedures on his left foot and developed moderately severe pes planus with foot deformity of the right foot, and therefore assigned a 30 percent rating for "bilateral pes planus with triple arthrodesis, left foot" under Diagnostic Codes 5276-5284. The Veteran filed his current claim for an increased rating for his bilateral pes planus in August 2008. In a June 2012 decision, pursuant to Diagnostic Code 5276, the Board granted a 50 percent disability rating for the Veteran's bilateral pes planus with triple arthrodesis, left foot, recurrent, effective January 14, 2011, the date of a VA feet examination which revealed that the Veteran had marked pronation and tenderness, was unable to wear an ankle brace, and did not endorse any reduction in symptoms with molded inserts. Moreover, the Board noted that the January 2011 VA examiner diagnosed the Veteran with left ankle degenerative joint disease (status post talo-navicular joint arthrodesis), possibly linking the Veteran's left ankle arthritis and his service-connected foot surgery. As such, the Board found that the issue of entitlement to service connection for left ankle degenerative joint disease, to include as secondary to service-connected bilateral pes planus, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board referred the issue to the Agency of Original Jurisdiction for appropriate action. As discussed above, in October 2012, following a September 2012 Joint Motion for Partial Remand by the Veteran and VA, the Court partially vacated the Board's June 2012 decision with respect to the ratings assigned for the Veteran's service-connected bilateral pes planus with triple arthrodesis, left foot, recurrent. The Court remanded that issue to the Board for compliance with the instructions in the Joint Motion. The Joint Motion stated that, in light of the fact that the Veteran's service-connected left foot disorder also included triple arthrodesis, the Board erred in not considering whether higher ratings were warranted under Diagnostic Code 5284, other foot injuries. The Board's June 2012 decision also granted a separate 10 percent disability rating under Diagnostic Code 7804 for two painful left ankle scars; however, the Joint Motion did not seek to disturb that portion of the decision. Under Diagnostic Code 5276, acquired flatfoot, a 30 percent evaluation is assigned for bilateral severe acquired flatfeet with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; or for unilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. A 50 percent evaluation is assigned for bilateral pronounced acquired flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2013). Diagnostic Code 5284, other foot injuries, the provision specifically cited in the Joint Motion, provides a 10 percent rating for moderate foot injuries. A 20 percent rating is assigned for moderately severe foot injuries. A maximum 30 percent rating is assigned for severe foot injuries. Additionally, a Note to Diagnostic Code 5284 provides that a 40 percent rating is assigned with actual loss of use of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2013). At the outset, the Board notes that the schedule provided under Diagnostic Code 5276 provides a higher maximum schedular rating for the Veteran than the schedule provided under Diagnostic Code 5284. Whereas the Veteran is currently service connected with a 30 percent rating prior to January 14, 2011, for pes planus and a 50 percent rating since January 14, 2011, for pes planus, he would only be entitled to a maximum schedular rating of 30 percent under Diagnostic Code 5284. The evidence does not show, nor does the Veteran argue, that he has actual loss of the foot, as contemplated by the Note to Diagnostic Code 5284. As such, the Joint Motion must be construed as meaning that the Board erred by not considering the application of a separate rating under Diagnostic Code 5284, in addition to the rating already assigned under Diagnostic Code 5276 for pes planus. Indeed, the Joint Motion states that "the Board should also address whether a separate rating is warranted for both feet under DC 5284." To this point, the Board reiterates that, in the June 2012 decision, it found that the issue of entitlement to service connection for left ankle degenerative joint disease, to include as secondary to service-connected bilateral pes planus, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction, and then referred the issue to the Agency of Original Jurisdiction for appropriate action. Moreover, the Board again emphasizes, as it did in the June 2012 decision, that the evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, in light of the evidence discussed above, there continues to remain uncertainty as to whether the symptomatology associated with degenerative joint disease of the left ankle and/or residuals of talo-navicular joint arthrodesis is duplicative or overlapping of symptomatology associated with pes planus. Before the Board can make any medical determination as to the existence of a disability, or lack thereof, there must be independent medical evidence as the basis for that determination. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the June 2012 Board decision found determination as to whether the Veteran is entitled to a TDIU to be part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While the Board had jurisdiction over this matter, it remanded the claim for TDIU to the RO for further development. However, to date, it does not appear that any of the requested development has been undertaken. Accordingly, a remand is mandatory. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination, to include a complete physical examination and interview of the Veteran, in order to determine the current severity of his service-connected bilateral pes planus with triple arthrodesis, left foot, recurrent. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The examination report should specifically state the degree of disability present in both feet and his current range of motion (to the extent applicable). The clinician should also discuss how the Veteran's disability impacts his daily activities of living. The extent of any pain, incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to pain, incoordination, weakened movement, and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner is also asked to provide answers to the following questions: a) Are there any residuals of talo-navicular joint arthrodesis which are separate and distinct disabilities from that of the Veteran's pes planus? If yes, is the symptomatology associated with the residuals of the Veteran's talo-navicular joint arthrodesis duplicative or overlapping of symptomatology associated with his pes planus? b) Is the Veteran's degenerative joint disease of the left ankle a separate and distinct disability from that of his pes planus and any residuals of residuals of talo-navicular joint arthrodesis? If yes, is the symptomatology associated with the Veteran's degenerative joint disease of the left ankle duplicative or overlapping of symptomatology associated with his pes planus and residuals of talo-navicular joint arthrodesis? Is it more likely than not that the symptomatology associated with the Veteran's degenerative joint disease of the left ankle is caused or aggravated by the symptomatology associated with his pes planus and/or residuals of talo-navicular joint arthrodesis? A complete rationale for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. Following completion of the above, the Veteran should be scheduled for an appropriate VA examination in order to determine whether he is unable to obtain or maintain substantially gainful employment due solely to his service-connected disabilities. A complete rationale must be provided for any opinion provided. 3. The Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2013). 4. After completing the above action and any other development that may be indicated by any response received as a consequence of the action taken in the paragraph above, the claims should be adjudicated. If any claim remains denied, a statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate 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). ______________________________________________ L. M. BARNARD Acting 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).