Citation Nr: 1415278 Decision Date: 04/08/14 Archive Date: 04/15/14 DOCKET NO. 10-42 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for peripheral neuropathy, left foot. 2. Entitlement to an initial compensable rating for peripheral neuropathy, right foot. 3. Entitlement to a compensable rating for plantar fasciitis, left foot. 4. Entitlement to a compensable rating for plantar fasciitis, right foot. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to July 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2013, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. 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 testified that he receives ongoing VA medical treatment for his disabilities. The most recent VA treatment records are dated in January 2009. These identified records must be requested. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board finds that the Veteran must be afforded new VA examinations with respect to his service-connected disabilities on appeal. The Veteran was last provided VA examinations in December 2008, more than five years ago. While the Veteran reported that his disabilities remained "roughly the same," since that time, the Veteran's representative contended that the VA examinations did not provide all relevant information to address the Veteran's disabilities under the rating criteria. In order to rate the Veteran's disabilities in accordance with the rating criteria, the Board finds that the Veteran must be provided new VA examinations. 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). Of final note, the Veteran's plantar fasciitis of the left foot and plantar fasciitis of the right foot have been rated separately as 0 percent disabling under Diagnostic Codes 5399-5310. Hyphenated diagnostic codes including a diagnostic code ending in the digits "99" are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. It does not appear that the RO considered rating the Veteran's disability under diagnostic codes pertaining to the feet and should do so when readjudicating the claims. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284. Accordingly, the case is REMANDED for the following action: 1. Request updated VA treatment records from the Lake City VA Medical Center or North Florida/South Georgia Veterans Health System, to include all associated outpatient clinics, from January 2009 to the present. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of the peripheral neuropathy of the right foot, peripheral neuropathy of the left foot, plantar fasciitis of the right foot, and plantar fasciitis of the left foot. The claims file must be made available for review. All indicated tests and studies must be conducted, to include an electromyography (EMG) test, if deemed necessary. Describe all symptoms and manifestations of the Veteran's peripheral neuropathy. Identify the nerve/nerves affected. Discuss whether the Veteran experiences complete or incomplete paralysis and whether the paralysis, if any, can be described as mild, moderate, or severe. Describe all symptoms and manifestations of the Veteran's plantar fasciitis. Address whether the symptoms/manifestations can be described as mild, moderate, or severe as described in accordance with the rating criteria for flat foot. 3. When the development requested has been completed, the issues must be readjudicated. Consider whether the Veteran's peripheral neuropathy can be rated under the diagnostic codes pertaining to diseases of the peripheral nerves. See 38 C.F.R. § 4.124a. Consider whether the Veteran's plantar fasciitis can be rated under another diagnostic code pertaining to the feet. 38 C.F.R. § 4.71a, Diagnostic Codes 5276-5284. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be 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. 2013). _________________________________________________ ROBERT C. SCHARNBERGER 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) (2013).