Citation Nr: 1336213 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-23 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for bilateral pes planus. 2. Entitlement to a compensable rating for tinea pedis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Wendell, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In that decision, the RO denied increased ratings for bilateral pes planus and tinea pedis. In June 2009, the RO granted an increased rating of 10 percent for pes planus. In claims for increased disability ratings, it is presumed that the Veteran is seeking the maximum benefit allowed by law; thus, such a claim remains in controversy where less than maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue of an increased rating for pes planus is still on appeal. In June 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is in the Virtual VA electronic file associated with the Veteran's claim. During the hearing, the Veteran submitted additional evidence in support of his claim, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has not submitted evidence of unemployability as a result of his disability. Although he mentioned standing and walking are difficult, he also specifically stated that he is currently employed and that his job allows him to mostly remain seated, which prevents his disabilities from interfering with his ability to work. Therefore, the Board finds that there is not an inferred claim of TDIU. The issue of service connection for a bilateral hip disability, 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. 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 Board must remand the claims for additional development. The Veteran's most recent medical examination to determine the current degree of severity of his bilateral pes planus was performed in October 2007. In his June 2013 testimony before the undersigned, the Veteran asserted that his condition has become worse. VA treatment records from June 2013 indicate a possible worsening of his condition since his last examination, including findings of a deformity and degenerative joint disease bilaterally. Similarly, the Veteran's last medical examination to establish the severity of his tinea pedis was in October 2007. During the June 2013 hearing, the Veteran stated that his condition had become worse, including that the use of corticosteroid treatments multiple times per week was required and that the entireties of both soles of his feet were affected. In light of this evidence suggesting that the Veteran's disabilities have increased in severity since the last examinations, the Board has determined that the Veteran should be afforded new VA examinations to determine the current degree of severity of his pes planus and tinea pedis. While on remand, efforts must be made to obtain any relevant VA treatment records from October 2008 forward. Additionally, any further records identified and authorized for release by the Veteran should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any further VA treatment records concerning the Veteran's pes planus and tinea pedis from October 2008 forward. Appropriate efforts should also be made to obtain any further medical records identified and authorized for release by the Veteran. All actions to obtain the records should be documented. If the records cannot be located or do not exist, a memorandum of unavailability should be associated with the claims file, and the Veteran should be notified and given an opportunity to provide the records, if able. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for VA examination(s) with an appropriate medical professional in order to ascertain the current severity of his service-connected pes planus and tinea pedis. The claims file should be made available to and reviewed by the examiners. A note that it was reviewed should be included in the examination reports. All testing deemed necessary must be conducted and results reported in detail. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). 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). _________________________________________________ BETHANY L. BUCK 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).