Citation Nr: 1503653 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 11-09 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from March 1953 to January 1955. This case is before the Board of Veterans' Appeals Board on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St Petersburg, Florida. In August 2011, the Veteran testified before a Decision Review Officer at the RO. The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in January 2012, a transcript of each proceeding is of record. The appeal for entitlement to an increased rating for bilateral pes planus was denied by the Board in March 2013. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2014, the Court issued a Memorandum Decision which set aside the Board's March 2013 decision and remanded the matter to the Board for further development and readjudication consistent with the Memorandum Decision. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record in an October 2014 communication from the Veteran's representative, 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. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). REMAND The July 2014 Memorandum Decision determined that the issues of entitlement to service connection for degenerative joint disease and calcaneal spurs of the feet had been raised by the record. These issues must be developed and adjudicated by the originating agency before the Board decides the issue on appeal. Moreover, since a remand of this case is required, development to obtain any outstanding records pertinent to the issue on appeal and to afford the Veteran a current VA examination should be completed while this case is in remand status. Accordingly, the case is REMANDED to the RO for the following actions: 1. Provide the Veteran with all required notice in response to the claim for service connection for degenerative joint disease and calcaneal spurs of the feet, to include as secondary to the service connected pes planus. 2. Undertake appropriate development to obtain any other outstanding records pertinent to the Veteran's claims. 3. Then, arrange for the Veteran to be afforded a VA examination by an examiner with sufficient expertise to determine the nature, extent, and etiology of the degenerative joint disease and calcaneal spurs of the Veteran's feet and to determine the current degree of severity of the Veteran's service-connected bilateral pes planus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be accomplished. The RO should ensure that all information required for rating purposes is provided by the examiner. In addition, the examiner should be requested to provide an opinion as to whether there is a 50 percent or better probability that the degenerative joint disease of the Veteran's feet is etiologically related to the Veteran's active service or was caused or permanently worsened by the service-connected bilateral pes planus. The examiner should also provide an opinion as to whether there is a 50 percent or better probability that the Veteran's calcaneal spurs are etiologically related to his active service or were caused or permanently worsened by the service-connected bilateral pes planus. In formulating the opinions, the examiner should specifically note and address the evidence of record documenting the presence of degenerative joint disease in the feet and calcaneal spurs. The rationale for all opinions expressed must also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner determines that an opinion would require speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. If the Veteran fails to report for any scheduled examination, documentation showing that he was properly notified of the examination or examinations should be associated with the record. 5. The RO should also undertake any other development it determines to be warranted. 6. Then, the RO should adjudicate the issues of entitlement to service connection for degenerative joint disease and calcaneal spurs of the feet. The Veteran should be informed of his appellate rights with respect to the decision. 7. Then, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative need take no action until they are otherwise notified, but they may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above, this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).