Citation Nr: 1645221 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 12-31 695 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus prior to July 23, 2012. 2. Entitlement to an initial evaluation in excess of 30 percent for bilateral pes planus from July 23, 2012, through January 4, 2016. 3. Entitlement to an initial evaluation in excess of 50 percent for bilateral pes planus from January 5, 2016. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from February 1969 to February 1971 with service as a Combat Engineer in the United States Army. He was awarded the National Defense Service Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran was afforded a videoconference hearing before the Board in July 2015. A transcript of the testimony offered at the hearing has been associated with the record. In September 2015, this matter was last before the Board, at which time it was remanded for further development. In a March 2016 rating decision, the RO increased the evaluation of bilateral pes planus to 50 percent disabling, effective January 5, 2016. See Fenderson v. West, 12 Vet. App. 119 (1999). Because the maximum benefits were not granted, the issue of entitlement to higher evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. In accordance with the Board's September 2015 remand directives, the Veteran was afforded a VA examination on January 5, 2016. As noted above, the RO has utilized this date to effectuate staged initial evaluations for the service-connected pes planus. Fenderson, supra. Prior to this latest examination, the Veteran was last examined in July 2012, and the Board remanded the matter in September 2015 to obtain a current VA examination. A review of the January 2016 VA examination report reflects that at the time of the examination the examiner assessed only bilateral pes planus, i.e. flat feet. However, a review of the Veteran's VA records indicates that bilateral hallux valgus has been assessed, and that this assessment is possibly related to the service-connected bilateral pes planus. See e.g. April 6, 2011, Emergency Department note reflecting "flat foot hallux valgus." The July 2012 VA examination noted indicates that in June 2011 the a portion of the left first metatarsal and all of the hallux was amputated due to ischemic gangrene in June 2011. The report noted right foot hallux valgus at the first metatarsophalangeal joint. Given this indication, the Board finds that a new VA examination is necessary to address all symptomatology with all diagnoses of the feet, and assess all foot disorders that are associated with the service-connected bilateral pes planus. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the feet, in order to assist in evaluating the severity of his bilateral pes planus. Properly notify the Veteran by sending notice of the details of the examination to the Veteran at his correct address. The Veteran's claims folder must be reviewed by the examiner. Ask the examiner to discuss all findings in terms of the diagnostic codes, particularly Diagnostic Codes 5276 (pes planus) and 5280 (hallux valgus). The pertinent rating criteria must be provided to the examiner. The findings reported must be sufficiently complete to allow for rating. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. (A)(i) In regard to bilateral pes planus, the examiner must describe all symptomatology associated with this disorder. If any symptoms attributable to pes planus overlap with symptoms attributable to other foot disorders, please so indicate. (ii) In regard to bilateral hallux valgus, the examiner must describe all symptomatology associated with this disorder. If any symptoms attributable to bilateral hallux valgus overlap with symptoms attributable to other foot disorders, including bilateral pes planus, please so indicate. (B) Provide an opinion on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hallux valgus is (i) caused by, or (ii) aggravated (i.e., permanently worsened beyond its normal progress) by his service-connected bilateral pes planus. If such aggravation is found, the examiner should address the following medical issues: (a) the baseline manifestations of the Veteran's hallux valgus found prior to aggravation; and (b) the increased manifestations that are proximately due to pes planus. 2. After the above action has been completed, readjudicate the Veteran's claim. If benefits sought remain denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). _________________________________________________ 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).