Citation Nr: 1338030 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-17 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for hard corns of the fourth and fifth toes with heavy calluses on the left foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In May 2012, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 seeks a higher rating for her hard corns of the fourth and fifth toes with heavy calluses on the left foot. She filed her current claim for an increased rating in October 2009 and, in a May 2011 rating decision, the RO granted a 10 percent disability rating effective the date of her claim. The Veteran was last provided with a VA feet examination in April 2011. Since then, evidence added to the record suggests that her service-connected left foot disability has increased in severity. For instance, the April 2011VA examination report indicated that the Veteran was able to stand for up to one hour; however, the Veteran testified at her May 2012 Board videoconference hearing that she was unable to stand more than 20 to 30 minutes before needing to take off her shoe and elevate her foot for relief. In addition, the Veteran testified in May 2012 that she had difficulty with walking up stairs and had to walk on the side of her left foot due to pain as well as lack of motion in the first, fourth, and fifth toes of her left foot. These limitations were not indicated in her most recent VA examination in April 2011. To ensure that the record reflects the current severity of the Veteran's service-connected left foot disability, the Veteran should be provided a more contemporaneous VA examination. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination); Weggenmann v. Brown, 5 Vet. App. 281 (1993) (VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination). In addition, in her March 2012 Board videoconference hearing, the Veteran testified that she developed pain on the ball of her left foot due to using only the second and third toes of her left foot for balance when standing and/or walking. She additionally testified that this pain subsequently spread back to her left ankle and up her left leg. However, the Board notes that the Veteran filed a separate claim for entitlement to service connection for bilateral foot arthritis with chronic pain in May 2000, which was denied in rating decisions dated in August 2000 and October 2001. The Veteran never appealed these rating decisions and the issue of entitlement to service connection for arthritis never came under the Board's jurisdiction. Although the RO denied the arthritis claim on the basis that there was no evidence showing that arthritis was incurred in or caused by her period of active duty service, a closer review of the evidence on record at this time reveals that there was no evidence of arthritis of the left foot prior to the August 2000 and October 2001 rating decisions. VA X-ray examination performed in July 2000 revealed no evidence of arthritis in the left foot. However, recent X-ray examination conducted at the time of the April 2011 VA examination revealed mild degenerative changes of the left foot. As such, on remand, the VA examiner should opine as to whether the Veteran exhibits additional symptomatology of the left foot, to include arthritis, that is separate and distinct from her service-connected hard corns of the fourth and fifth toes with heavy calluses. If separate and distinct symptomatology, to include arthritis, is diagnosed, then the examiner is asked to opine as to the likelihood that it is caused or aggravated by the Veteran's service-connected hard corns of the fourth and fifth toes with heavy calluses. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all medical treatment records for the Veteran from the Ralph H. Johnson VA Medical Center in Charleston, South Carolina, and any associated outpatient clinics dated from December 2010 to the present. All records and/or responses received should be associated with the claims file. 2. After the above development has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity of her service-connected left foot disability. The claims file and a copy of this remand must be provided to the examiner and reviewed in conjunction with the examination. Any appropriate diagnostic testing, to include X-rays, should be conducted. All ranges of motion of the left foot should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss. If there is functional loss as a result of weakened movement, excess fatigability, or incoordination in the left foot, the examiner should express the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Further, an opinion should be provided as to whether any pain associated with the left foot could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). The VA examiner should also opine as to whether the Veteran exhibits additional symptomatology of the left foot, to include arthritis, that is separate and distinct from her service-connected hard corns of the fourth and fifth toes with heavy calluses. If separate and distinct symptomatology, to include arthritis, is diagnosed, the examiner is asked to clinically distinguish such symptoms from the symptoms of the service-connected hard corns of the fourth and fifth toes with heavy calluses, to the extent possible. The examiner is also asked to opine as to whether such distinct symptomatology, to include arthritis, is at least as likely as not (i.e., 50 percent or better probability) is caused or aggravated by the Veteran's service-connected hard corns of the fourth and fifth toes with heavy calluses, to include any altered gait caused by the service-connected disability. "Aggravation" is defined as a permanent worsening beyond the natural progression of the disease or disability. If aggravation is found, the examiner should address the baseline level of disability before it was aggravated by any service-connected disability. A complete rationale for all opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 4. When the development requested has been completed, the case should be reviewed by the AMC on the basis of additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ U. R. POWELL 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).