Citation Nr: 1415518 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 09-33 986 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial compensable disability rating for hallux valgus with bunions, left foot. 2. Entitlement to an initial compensable disability rating for status-post right bunionectomy and 2nd toe surgery with hallux valgus and bunions (claimed as bilateral bunions, right toe pain and metatarsal 2nd joint). 3. Entitlement to a disability rating in excess of 10 percent for scars, right foot. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from August 2000 to January 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for the aforementioned claim, with an initial noncompensable rating for each disability. In a subsequent April 2012 rating decision, the RO increased the rating for the Veteran's service-connected scars, right foot, to 10 percent, effective November 8, 2010. Despite the assignment of an increased disability evaluation for this disability, the issue remains in appellate status because the Veteran has continued to express disagreement with the assigned ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2013, the Veteran testified during a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the hearing has been associated with the Veteran's claims folder. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for depression, to include as secondary to service-connected hallux valgus with bunions, left foot, and status-post right bunionectomy and 2nd toe surgery with hallux valgus and bunions, have been raised by the record (see Board hearing transcript, October 2013), but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they referred to the AOJ for appropriate action (to include a determination of whether the Veteran's claimed depression is a manifestation arising from her bilateral foot disorders). 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 Under the VCAA, VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The Veteran claims that her service-connected bilateral foot disorders have increased in severity since her last VA examination. See Board hearing transcript, October 2013. She also claims that her scars, right foot, are so severe that each scar should be afforded a separate disability rating. Id. She was most recently afforded a VA examination in November 2010. Given that more than three years have elapsed since the 2010 examination, the Board finds that a new examination is needed to fully and fairly evaluate the Veteran's disabilities. Accordingly, the case is REMANDED for the following action: 1. Make arrangement to obtain the Veteran's VA treatment records, to include those from the McAllen, Texas, VAMC, since November 2010. 2. Thereafter, schedule the Veteran for a VA examination at the McAllen, Texas, VAMC with an appropriate specialist to determine the current severity of her bilateral foot disorders and scars, right foot. The claims folder must be made available to the examiner in conjunction with the examination and the examiner must note that the folder has been reviewed. Any and all tests and evaluations deemed necessary should be performed and the clinical findings must be reported in detail. The clinician must specifically describe the effects of the Veteran's disabilities on her occupational functioning and activities of daily life. A complete rationale for all opinions expressed must be included in the examination report. 3. Readjudicate the Veteran's claims on appeal, to include consideration of whether a separate disability rating is appropriate for each of the Veteran's right foot scars. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and her representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ KELLI A. KORDICH Acting 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).