Citation Nr: 1343096 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-23 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to increased initial evaluations for bilateral pes planus and hallux deformity with degenerative joint disease, left first metatarsophalangeal joint, left calcaneal spur, and residuals of surgery, left fifth toe, rated as noncompensable prior to December 15, 2010, and as 20 percent disabling as of that date. 2. Entitlement to an initial evaluation higher than 20 percent for chronic lumbar strain. 3. Entitlement to an initial evaluation higher than 10 percent for degenerative joint disease, left ankle with history of sprain and stress fracture. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The claims were previously remanded by the Board in November 2010 for additional development. In an April 2012 rating decision, the rating assigned for the service-connected bilateral pes planus and hallux deformity with degenerative joint disease, left first metatarsophalangeal joint, left calcaneal spur, and residuals of surgery, left fifth toe, was increased to 20 percent effective October 15, 2010. Despite the increased rating granted, the Veteran's appeal remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a rating decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 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 record before the Board consists of paper claims files and an electronic file known as Virtual VA. Review of the Veteran's electronic file reveals that additional VA treatment records were obtained in April 2012 and August 2012. Some of the records obtained in April 2012 reveal treatment related to the Veteran's back and feet. The supplemental statement of the case (SSOC) issued in April 2012 did not consider these records. This must be rectified on remand. See 38 C.F.R. § 19.31(b) (2013). It does not appear that the VA treatment records located in the Veteran's electronic file comprise his entire record of treatment since September 2008, the date on which the last VA treatment records were associated with the paper claims files. On remand, the Veteran's complete VA treatment records dated since September 2008 should be obtained. The Veteran's left ankle, back, and feet were last examined approximately three years ago. Contemporaneous VA examinations should also be scheduled on remand given the length of time since the most recent examinations and given that the disabilities may have increased in severity. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's complete treatment records from the Columbia, South Carolina VA Medical Center, dated since September 2008. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected chronic lumbar strain and degenerative joint disease, left ankle with history of sprain and stress fracture. The examiner must review the claims file and all relevant electronic medical records. Any indicated studies are to be performed. The examiner is to identify all residuals attributable to the Veteran's service-connected chronic lumbar strain and degenerative joint disease, left ankle with history of sprain and stress fracture. The examiner is to report the range of motion measurements for the lumbar spine and left ankle, in degrees. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted, and the examiner should indicate whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine and left ankle are used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner is to identify any nerve(s) affected by the Veteran's service-connected lumbar spine disability and discuss the extent, if any, of paralysis of the nerves involved. The examiner is to discuss whether the Veteran has any neurologic abnormalities, including, but not limited to, bowel or bladder impairment, as a result of his lumbar spine disability. In regards to the left ankle disability, the examiner must discuss whether there is malunion of the os calcis or astragalus. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide any of the requested information without resorting to speculation, it should be so stated. 3. Also, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected bilateral pes planus and hallux deformity with degenerative joint disease, left first metatarsophalangeal joint, left calcaneal spur, and residuals of surgery, left fifth toe. The examiner must review the claims file and all relevant electronic medical records. Any indicated studies are to be performed. The examiner is to identify all residuals attributable to the Veteran's service-connected bilateral pes planus and hallux deformity with degenerative joint disease, left first metatarsophalangeal joint, left calcaneal spur, and residuals of surgery, left fifth toe. The examiner is to specifically address whether the Veteran's bilateral foot disability has resulted in acquired flatfoot, acquired pes cavus, and/or malunion or nonunion of the tarsal or metatarsal bones. The examiner must also address whether the Veteran's bilateral foot disability is moderate, moderately severe, or severe. A comprehensive report, including complete rationales for all conclusions reached, must be provided. 4. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. Finally, readjudicate the claims, with consideration of all evidence of record received since the issuance of the September 2008 supplemental statement of the case (SSOC). If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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. 2013). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).