Citation Nr: 1618402 Decision Date: 05/06/16 Archive Date: 05/13/16 DOCKET NO. 11-18 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to higher ratings for bilateral pes planus with bunions, rated as noncompensable prior to March 4, 2015, 10 percent disabling prior to October 21, 2015, and 30 percent disabling thereafter. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1991 to February 1993 and from November 1999 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of the Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction was subsequently transferred to the Chicago, Illinois RO. In a December 2015 rating decision, the RO increased the Veteran's disability rating for bilateral pes planus with bunions from 10 percent to 30 percent, effective October 21, 2015. However, inasmuch as higher ratings are available for all periods of the staged ratings for bilateral pes planus with bunions and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher ratings for bilateral pes planus with bunions remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This case was previously remanded in July 2014 and in August 2015 for further development. At the time of the August 2015 remand, a claim for service connection for a left knee disability was also remanded to the Agency of Original Jurisdiction (AOJ). In the December 2015 rating decision, the AOJ granted service connection for a left knee disability. Therefore, this issue is no longer on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The August 2015 remand, in pertinent part, directed the AOJ to provide the Veteran with a VA examination to determine the nature and severity of the Veteran's service-connected bilateral pes planus with bunions. In this regard, the August 2015 remand requested that the VA examiner identify all diagnoses referable to the Veteran's feet, to specifically consider the Veteran's documented right foot degenerative joint disease, right hallux limitus, and gastrocnemius equinus. See July 2012 VA treatment note; July 2013 VA treatment note. The remand then instructed the examiner to determine whether the noted conditions were part and parcel of the service-connected bilateral pes planus with bunions, separate from such disability, but caused or aggravated by such disability, or separate from such disability, but at least as likely as not related to the Veteran's military service. Additionally, the August 2015 remand requested that the AOJ associate any outstanding, relevant VA treatment records with the claims file. Following the August 2015 remand, VA treatment records dated through October 2015 were associated with the claims file. Further, the Veteran underwent a Disability Benefits Questionnaire (DBQ) examination in October 2015. However, examiner did not indicate as to whether he considered the documented diagnoses referable to the Veteran's feet as instructed by the August 2015 remand. The examiner also did not provide the requested opinions as to the noted conditions, to include the right foot degenerative joint disease, right hallux limitus, and gastrocnemius equinus. Based on the foregoing, the Board finds that the AOJ did not substantially comply with the mandates of the Board's remand from August 2015. The October 2015 DBQ report does not indicate that the examiner considered the documented conditions as instructed by the remand. Further, there is no opinion of record as to whether the noted conditions were part and parcel of the service-connected bilateral pes planus with bunions, separate from such disability, or at least as likely as not related to the Veteran's military service. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In Stegall, the Court held that "where. . . the remand orders of the Board. . . are not fully implemented, the Board itself errs in failing to insure compliance." Id. In light of the deficiencies detailed above, this matter must be remanded to ensure compliance with the Board's previous remand. Furthermore, a review of the claims file shows that the most recent VA treatment records are dated in October 2015. On remand, the Veteran should identify any outstanding VA or non-VA treatment records for his claim. Thereafter, all identified records, to include those dated from October 2015 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claim. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, arrange for the October 2015 DBQ examiner to provide an addendum opinion. If the examiner who drafted the October 2015 opinion is unavailable, the opinion should be rendered by another appropriate medical professional. Any additional VA in-person examination is left to the discretion of the VA examiner. Following a review of the claims file, the reviewing examiner is requested to furnish an opinion with respect to the following questions: The examiner should identify all diagnoses referable to the Veteran's feet since the date of the claim (i.e. in May 2003), to specifically include right foot degenerative joint disease, right hallux limitus, and gastrocnemius equinus. See July 2012 VA treatment record; July 2013 VA treatment record. The examiner should then indicate whether the diagnosed condition(s) is(are) part and parcel of the Veteran's service-connected bilateral pes planus with bunions; separate from bilateral pes planus, but caused or aggravated by it; or separate from bilateral pes planus, but at least as likely as not related to the Veteran's military service. The examiner should consider all evidence of record, including lay statements and medical records. The rationale for all opinions offered should be provided. 4. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ MARJORIE A. AUER 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).