Citation Nr: 1540936 Decision Date: 09/22/15 Archive Date: 10/02/15 DOCKET NO. 09-38 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating, in excess of 30 percent, for bilateral pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to March 1989. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). In a November 2014 decision, the Board denied the appeal for an increased rating for bilateral pes planus and remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for additional development. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2015, the Court granted a Joint Motion for Partial Remand, and remanded the portion of the August 2015 Board decision which denied an increased rating in excess of 30 percent for bilateral pes planus for action consistent with the terms of the joint motion. The case is once again before the Board. The issue of entitlement to a TDIU was remanded by the Board in November 2014. It does not appear that the ordered development has been competed, nor has the issue been recertified to the Board. Therefore, development of this issue is referred to the AOJ for appropriate action. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C.A. § 5103A (West 2014). In a case of records held by a Federal department or agency, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. In a September 2015 statement, the Veteran's representative contends that a remand is required to obtain outstanding VA and private treatment records relevant to the Veteran's appeal. These include Select PT records dated from April 2010, and VA treatment records dated from 2011 to present. Accordingly, the Board finds that a remand for such records is necessary. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); VAOPGCPREC 12-95, 60 Fed. Reg. 43186 (1995) ("...an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error.") Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). An August 2015 Joint Motion for Partial Remand provides that a remand is warranted because the Board failed to provide an adequate reasons and bases its decision. In light of arguments presented in the Joint Motion, the Board finds that a remand for an updated VA examination is necessary to fully evaluate the Veteran's pes planus, associated symptoms, and functional limitations, to address the collective impact or compounding negative effects of the Veteran's service-connected foot disabilities, and to address whether the Veteran's foot disabilities approximate a rating based on loss of use of either foot. Consistent with the Joint Motion for Partial Remand, the AOJ should consider whether the criteria for special monthly compensation under the provisions of 38 C.F.R. §§ 3.350 (a) - (c) and 4.63 based on loss of use of either foot have been met prior to consideration of this issue by the Board. The Joint Motion for Partial Remand provides that the Board erred in finding that referral for extraschedular consideration is not warranted, noting the Veteran's complaints of marked interference with employment manifested by an inability to stand or walk for any significant period of time. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In light of the Veteran's contentions with regard to an inability to stand or walk for a significant period of time, and his additional service-connected disabilities of bilateral plantar fasciitis and tarsal tunnel syndrome, the Board finds that the Veteran has essentially asserted that the combined effect of multiple service-connected disabilities (to include service-connected pes planus, plantar fasciitis, and tarsal tunnel syndrome) creates such an exceptional circumstance to render the schedular rating criteria inadequate. The Board finds that a remand for referral the Director, Compensation Service is warranted to determine, in the first instance, whether an extraschedular evaluation is warranted for bilateral pes planus, to include the question of whether an extraschedular rating is warranted based on the combined effect of the Veteran's service-connected disabilities. See Johnson, 762 F.3d 1362. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any outstanding VA treatment records, to include any records dated from 2011 to the present, from the VA medical center in Tampa, Florida should associate them with the record. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 2. After securing any necessary release forms, the AOJ request outstanding private treatment records from Select PT dated from 2010 to present. If the search for the requested records has negative results, notify the Veteran and place a statement to that effect in the record. 3. The AOJ should schedule the Veteran for a VA orthopedic examination to help assess the severity service-connected pes planus. The record should be made available for review in connection with this examination. All indicated tests and studies should be performed. The examiner should specifically address the Veteran's occupational and functional limitations due to pes planus, and as due to the collective impact or compounding negative effects of the Veteran's service-connected foot disabilities (pes planus, plantar fasciitis, and tarsal tunnel syndrome). The VA examiner should address whether the Veteran's foot disabilities approximate "actual loss of use of either foot," or alternately, "the loss of use of a foot such that no effective function remains other than that which would be equally well served by amputation with the use of a prosthetic appliance." 4. The AOJ should consider, in the first instance, whether the criteria for special monthly compensation under the provisions of 38 C.F.R. §§ 3.350 (a) - (c) and 4.63 based on loss of use of either foot have been met. 5. The AOJ should refer the appeal for an increased rating for pes planus to the Director, Compensation, for consideration of whether an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b) is warranted, based either on the Veteran's pes planus alone, or upon the "combined effect" of his multiple service-connected disabilities. 6. After all development has been completed, the AOJ should review the case again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a Supplemental Statement of the Case addressing the appeal for an increased rating for bilateral pes planus. The Veteran and his representative should be given a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran 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 2014). _________________________________________________ K. J. Alibrando 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) (2015).