Citation Nr: 1335678 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-18 451 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for pes planus with bunions bilaterally (claimed as bilateral foot condition), prior to September 8, 2010. 2. Entitlement to a rating in excess of 30 percent for pes planus with bunions bilaterally (claimed as bilateral foot condition), from September 8, 2010 to July 26, 2013. 3. Entitlement to a rating in excess of 50 percent for pes planus with bunions bilaterally (claimed as bilateral foot condition), from July 26, 2013, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 1997 to June 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2011 rating decision in which the RO, inter alia, granted service connection and assigned a 10 percent disability rating for pes planus with bunion formation bilaterally, effective June 9, 2000 and a 30 percent disability rating, effective September 8, 2010. In June 2011, the Veteran filed a NOD to the initial ratings assigned. The RO issued a SOC in June 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in that same month. In May 2013, the Board remanded the Veteran's claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC granted a 50 percent rating for bilateral pes planus with bunion formation bilaterally, effective July 26, 2013, (as reflected in an August 2013 rating decision), continued to deny higher ratings for bilateral pes planus prior to this date (as reflected in an August 2013 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration. Because the Veteran has disagreed with the initial rating assigned following the awards of service connection for pes planus with bunion formation bilaterally, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted staged ratings for the Veteran's pes planus, inasmuch as a higher rating for this disability is available, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as encompassing all three matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, as the Veteran has been awarded the maximum rating possible as of July 26, 2013 under the rating criteria for bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276, as explained further below, the Board has expanded the matter of entitlement to a rating in excess of 50 percent to also reflect consideration of a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). In a separate Board decision issued in May 2013, the Board remanded the issues of entitlement to service connection for bilateral hearing loss and low back disability for further development. Currently, it does not appear that any further development has occurred with respect to the issues as directed in the Board remand. As such, these issues will be the subject of a separate appellate decision in the future, if necessary. With respect to the issues that were then on appeal, in September 2005, the undersigned granted the Veteran's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2005). Although the issues being addressed in this decision were not on appeal at that time, this appeal is still considered to be advanced on the Board's docket. The Board observes that in a September 2013 brief, the Veteran's representative, asserted that given that there is evidence that the Veteran cannot work due to his service-connected bilateral pes planus, the Board should consider whether a total disability rating based on individual unemployability (TDIU) is warranted, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). However, a review of the claims file shows that the RO awarded a TDIU in the February 2011 rating decision, effective September 3, 2009, the date after the Veteran last worked as documented in an August 2010 claim submitted by the Veteran. Thus, as the Veteran has been awarded a TDIU, effective the last date of his employment, this matter is rendered moot. As a final preliminary matter, 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. With the exception of the September 2013 brief submitted by the Veteran's representative and additional VA treatment records dated from May 2013, a review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the prior May 2013 remand, the Board observed that the effective date assigned by the RO for the 30 percent evaluation for the Veteran's service-connected feet disability was based on the Veteran's September 8, 2010 claim to reopen as opposed to any medical documentation demonstrating an actual increase in severity. In turn, the Board remanded the claims for a VA examination to determine the current severity of the Veterans bilateral pes planus and requested an opinion to determine at what point since June 9, 2000, the Veteran's bilateral pes planus with bunions had increased in severity. The Veteran was afforded a VA Examination in July 2013. However, the examiner did not indicate at what point the Veteran's bilateral pes planus had increased in severity as directed. The examiner simply stated that the Veteran had an increase in pain since 2000 with radiographic advancement. Under these circumstances, the Board finds that the medical evidence currently of record is inadequate, and that a further VA opinion is necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the RO should arrange for the claims file to be forwarded to the physician who conducted the July 2013 VA examination for review and issuance of an addendum opinion. If the same examiner is not available or another VA examination is deemed necessary, the RO should arrange for the Veteran to undergo another VA podiatry or orthopedic examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of the claims for higher rating (as these claims emanate from a claim for, and award of, service connection). 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. The Board further notes that, as of July 26, 2013, the Veteran is receiving the maximum schedular rating possible for bilateral pes planus. In turn, the Veteran's assertions regarding the impact of the disability on his employment appears to raise the question of his entitlement to a higher rating for bilateral pes planus on an extra-schedular basis. See 38 C.F.R. § 3.321 (2013). Moreover, the July 2013 VA examiner opined that the Veteran's flatfoot condition did impact his ability to work. The Board has thus expanded the issue, accordingly. Further, in its September 2013 brief, the Veteran's representative argued that the Veteran's disability should also be considered under the rating criteria for amputation of the foot. The Board observes that the RO did not address these matters in its most recent August 2013 SSOC. As such, the RO should consider whether the procedures to award a higher rating on an extra-schedular rating are invoked as well as whether a higher rating is warranted under the rating criteria for amputation of the foot, in the first instance, to avoid any prejudice to the Veteran. While these matters are on remand, the RO should also obtain and associate with the claims file all outstanding VA treatment records. The Veteran's Virtual VA folder currently includes outpatient treatment records from the VA Medical Center (VAMC) in Detroit, Michigan, dated to May 2013; however, more recent records from this facility may exist. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, to ensure that that all of the applicable VA treatment records are of record, the RO must obtain from the Detroit VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from May 2013 to the present, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. The RO's adjudication of the claims for higher rating should include continued consideration of whether any, or any further staged rating of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Fenderson (cited above), is warranted, as well as whether a rating in excess of 50 percent is warranted under the rating criteria for amputation of the foot or on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Detroit VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, from May 2013 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the Virtual VA electronic file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified evidence following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and copies of any relevant Virtual VA records, to the individual who conducted the July 2013 VA orthopedic foot examination for review, and issuance of an addendum opinion. To the extent possible, the examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) for the period prior to July 26, 2013. The examiner is asked to address whether bilateral pes planus resulted in weightbearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, pronounced marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances. The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's bilateral pes planus at any point since June 9, 2000, and, if so, the approximate date(s) of any such change(s). The examiner should also address the impact of the Veteran's bilateral pes planus on his employability. If the July 2013 examiner is not available, or another examination is deemed necessary, arrange for the Veteran to undergo VA feet examination, by an appropriate physician, to obtain an opinion addressing the questions posed above. In such instance, the entire claims file, to include complete copy of this REMAND, and copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority, to include consideration of whether any, or any further, staged rating of the disability, pursuant to Fenderson (cited above), is appropriate and whether a rating in excess of 50 percent is warranted under the rating criteria for amputation of the foot or on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1)). 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). The RO is reminded that this appeal has been advanced on the Board's docket _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).