Citation Nr: 1604323 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 09-49 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for the service-connected bilateral pes planus with plantar fasciitis and associated heel spurs. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to a disability rating in excess of 10 percent for the service-connected tinnitus. 4. Entitlement to a compensable disability rating for the service-connected bilateral hearing loss. 5. Entitlement to service connection for a right ankle disability. 6. Entitlement to service connection for a right testicle condition. 7. Entitlement to service connection for a left ring finger condition. 8. Entitlement to service connection for chest pain. 9. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a bilateral knee disability, claimed as secondary to the service-connected pes planus with plantar fasciitis and heel spurs. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from March 1979 to March 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2009 and October 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the January 2009 rating decision, the RO confirmed and continued a previously assigned 30 percent rating for the service-connected bilateral pes planus with plantar fasciitis and heel spurs. In February 2012, the Veteran provided testimony in support of his claim for a higher rating for the service-connected pes planus at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board remanded the issue of entitlement to a disability rating in excess of 30 percent for the service-connected pes planus with plantar fasciitis and heel spurs, along with an inferred claim of entitlement to a TDIU, for additional development of the record. Meanwhile, the RO issued a rating decision in October 2011. In that decision, the RO confirmed and continued the 10 percent rating assigned for the service-connected tinnitus and the noncompensable rating assigned for the service-connected bilateral hearing loss; denied service connection for a right ankle condition, a right testicle condition, a left ring finger condition, and chest pain. Also in this rating decision, the RO determined that new and material evidence had not been received to reopen previously denied claims of service connection for right and left knee disabilities, claimed as secondary to the service-connected pes planus. The Veteran's NOD with the October 2011 rating decision was received at the RO in March 2012. The RO issued a Statement of the Case (SOC) in August 2013. The Veteran perfected his appeal with the submission of a timely substantive appeal (VA Form 9), which was received at the RO in September 2013. As to these issues, the Veteran has requested to appear at a personal hearing before a Veterans Law Judge at the RO to present testimony in support of these claims. These issues were certified to the Board on appeal in August 2015. In addition to the paper claims file, there is an electronic record which includes a Virtual VA (VVA) electronic claims file and the Virtual Benefits Management System (VBMS). The documents in the VBMS and VVA files have been reviewed. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks a disability rating in excess of 30 percent for the service-connected pes planus with plantar fasciitis and heel spurs. An October 2008 VA podiatry consult indicates that the Veteran's arches were severely painful upon palpation at that time. Upon examination during gait analysis there was severe flattening of the medial longitudinal arches bilaterally. The assessment was severe pes planus, and custom orthotics were recommended. The Veteran's feet were examined in January 2009. In contrast to the findings from October 2008, the VA examination report reflects no abnormal weightbearing, no pain on manipulation, although tenderness was noted on palpation of the plantar aspect of the feet along the midfoot and hind foot. The assessment was flexible pes planus and plantar fasciitis, bilateral feet. The Veteran asserts that the January 2009 examination was inadequate because it was not thorough, and focused mainly on his knees, and not his feet. See April 2009 Statement in Support of Claim and December 2009 VA Form 9. At his personal hearing in February 2012, the Veteran reported that he experiences spasms in his feet at night, like someone is stabbing a knife into his feet. The Veteran also testified that he had calluses on both of his heels. When asked why he felt the January 2009 examination was inadequate, he said that the examiner did not check much. He said that the examiner told him to take off his orthotics and try to stand on his toes, "...and that was basically the extent of the exam, then he told me to get out." The Veteran's bilateral pes planus was most recently examined in May 2013. At that time, the Veteran reported that he recently received new orthotics which were softer than his previous ones, and which helped a little with the pain. The Veteran continued to complain of pain in his feet, but specifically indicated that it was less than before. Results of this examination indicate that the Veteran had pain on use and manipulation of the feet, but his symptoms were relieved by arch supports/orthotics. He did not have characteristic calluses, and he did not have extreme tenderness of plantar surfaces, although decreased longitudinal arch height on weight-bearing was noted bilaterally. There was no objective evidence of marked deformity, but the Veteran had inward bowing of the Achilles' tendon bilaterally, but no marked inward displacement and no severe spasm of the Achilles tendon on manipulation. The examiner also found that traumatic arthritis of both feet was shown on an April 2008 x-ray. At that time, early degenerative arthritic changes were shown in the first metatarsophalangeal joints, and small osteophytes projected from the calcaneus along the plantar surface with early calcification at the insertion of the Achilles tendon. The midfoot appeared unremarkable, the hindfoot demonstrated bilateral small calcaneal plantar spurs and early calcification at the insertion of the Achilles tendon, bilaterally. The diagnosis was mild pes planus with residuals of plantar fasciitis and heel spurs. The Veteran maintains that his service-connected pes planus disability with plantar fasciitis and heel spurs has worsened since the 2013 examination. He asserts that his pes planus is profoundly severe with plantar fasciitis and marked pronation, extreme tenderness, inward displacement, and severe spasms. See Appellant's January 2015 Post-Remand Brief. A new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Also, where the Veteran claims that a disability is worse than when originally rated, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Additionally, VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Reexamination will be requested whenever VA determines that there is a need to verify the current severity of a disability. 38 C.F.R. § 3.327(a). Prior to the examination, up-to-date treatment records should be obtained. Also, as it is unclear whether the Veteran chose to pursue VA Vocational Rehabilitation, a copy of his VA Vocational Rehabilitation records should be obtained on remand. See October 2012 letter from Vocational Rehabilitation and Employment indicating that the Veteran should contact the office if he wished to continue with services. Regarding the other claims on appeal, the Veteran has requested to appear at a travel board hearing before a Veterans Law Judge at the RO to provide testimony in support of his claims. Pursuant to 38 C.F.R. § 20.700(a), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. The Veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b); 38 C.F.R. § 20.700. Finally, the TDIU claim is inextricably intertwined with the increased rating claims on appeal and must be deferred pending the outcome of those claims. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA Vocational Rehabilitation file or a copy thereof. 2. Regarding the claim for a disability rating in excess of 30 percent for the service-connected pes planus with plantar fasciitis and heel spurs, obtain and associate with the claims file or electronic record all outstanding VA treatment records generated since May 2013. 3. Thereafter, schedule the Veteran for a VA examination of the feet to determine the current nature, extent, and severity of the service-connected bilateral pes planus with plantar fasciitis and heel spurs. The examiner must review the paper claims file and the electronic record, including a copy of this remand, in conjunction with the examination. The examiner should provide information concerning how the pes planus, plantar fasciitis, heel spurs, and any associated manifestations, affect the functioning of the Veteran's feet. All indicated tests deemed necessary shall be conducted and the results reported in detail. a. The examiner should report all current findings related to bilateral pes planus, plantar fasciitis, heel spurs and any associated manifestations. Regarding the pes planus in particular, the examiner should specifically note whether there is objective evidence of marked or pronounced deformities, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achillis on manipulation, not improved by orthopedic shoes or appliances on one or both feet. See September 2015 appellant's post-remand brief on VBMS which notes the Veteran's report that the disorder has worsened since the May 2013 examination. b. The examiner should fully describe the functional impairment which results from the bilateral pes planus, plantar fasciitis, heel spurs and any associated manifestations, which may affect the Veteran's ability to function and perform tasks in a work setting. 4. Thereafter, readjudicate the issue on appeal of entitlement to a disability rating in excess of 30 percent for the service-connected pes planus with plantar fasciitis and heel spurs, to include whether a TDIU is warranted. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 5. Regarding the other issues on appeal, the RO should appropriately schedule the Veteran for the hearing before a Veterans Law Judge at the RO. The RO should notify the Veteran and his representative of the date, time and place of the hearing. After the hearing is conducted, or in the event the Veteran withdraws his hearing request or fails to report for the hearing, the claims file should be returned to the Board for appellate 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 2014). _________________________________________________ S.S. TOTH 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).