Citation Nr: 1702399 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 10-36 255 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to a rating in excess of 30 percent for bilateral flatfoot, acquired. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1957 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. Notably, this matter was previously before the Board in March 2014, when it was remanded for additional development, and in November 2014, when the Board denied the Veteran's claim. The Veteran appealed the Board's November 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2016, the Court vacated the Board's November 2014 decision on the ground that it did not comply with the Court's holding in Mittleider v. West, 11 Vet. App. 181, 182 (1998), and it remanded the case to the Board for further appellate review. The issues of entitlement to service connection for polysensory neuropathy and hammertoes have been raised by the record in an April 2014 VA foot conditions examination report, but they have not been addressed by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking an increased rating for his bilateral flatfoot disability. As reflected in an August 2010 statement submitted along with his VA Form 9, VA examination reports, and VA podiatry treatment records, the Veteran has expressed symptomatology such as numbness, tingling, pain, burning, reduced muscle strength, excess fatigability, lack of endurance, and an inability to stand or walk due to his bilateral flatfoot disability. Before reaching a decision on his claim, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Although the Veteran was afforded VA examinations in October 2009 and April 2014, the Board finds that an additional medical opinion is necessary before adjudicating the instant claim. Beginning in September 2008, VA podiatry treatment records note complaints of tingling and numbness in the Veteran's bilateral feet and indicate that he reported multiple hip surgeries in the past and an inability to ambulate. A September 2009 podiatry record notes that the Veteran had spinal stenosis and radiculopathy; it is unclear whether this notation was based on the Veteran's reported history. In September 2009, the Veteran underwent a VA examination for housebound status or permanent need for regular aid and attendance. The report includes diagnoses of severe degenerative joint disease and osteoarthritis of the bilateral hips, knees, shoulders, and feet. The report provides that the Veteran was unable to ambulate due to severe osteoarthritis of the bilateral hips, shoulders, and knees. It also appears to indicate that the Veteran was limited from walking more than three or four steps due to bilateral hip pain, knee pain, and foot pain on weight-bearing. As set forth in the October 2009 VA examination report, the Veteran's prior medical history included multiple bilateral hip surgeries and severe osteoarthritis of the bilateral knees. The Veteran reported pain in the balls and arch areas of both feet, and numbness in his toes bilaterally. The Veteran indicated that he can no longer stand or walk at all due, in part, to his bilateral foot pain, but also, pain in his hips and knees. On physical examination, there was decreased medial arch with weight bearing, right greater than left. With respect to gait, the examiner noted that the Veteran was unable to ambulate at all, and no weight-bearing tests were performed because the Veteran was unable to stand. The impression was bilateral pes planus. With respect to functional limitations posed by the Veteran's disability, the examiner detailed that the Veteran's flatfoot, coupled with his other multiple orthopedic issues, caused him moderate to severe residual functional impairments. In March 2014, the Board remanded the Veteran's claim, in part, to afford him an additional VA examination. In its remand, the Board specifically instructed the examiner to differentiate the symptoms of his bilateral flatfoot from any other musculoskeletal or orthopedic disorders, to include other foot disorders. The Veteran was afforded another VA examination in April 2014, during which the Veteran reported pain in the balls of his feet and chronic numbness in the pedal digits. The Veteran also reported that he had hammertoes since service that had worsened over the years. The Veteran maintained that he was unable to stand or walk for any appreciable distance due to his bilateral hip pain and, in lesser part, his bilateral foot pain. With respect to pertinent medical history, the examiner included an excerpt from a June 2010 VA neurology consult, which provided that there was electrodiagnostic evidence of possible sensorimotor polyneuropathy in the lower extremities. The examination report details that the Veteran was diagnosed with diabetes mellitus approximately 20 years prior and that according to the Veteran, his diabetes mellitus did not impact the numbness in his feet. On physical examination, there was marked pronation of the right foot that was improved with orthopedic shoes, but there was not extreme tenderness of the plantar surfaces of the feet or marked inward displacement and severe spasms of the tendo achilles on manipulation. X-ray imaging showed degenerative changes in both feet; the examiner indicated that some of these changes might be attributable to the Veteran's pes planus and/or his history of presumptive gout. The examiner gave diagnoses of bilateral flatfoot and bilateral hammertoes. The examiner opined that prior EMG testing was suggestive of polysensory neuropathy in the bilateral feet, but she did not render a diagnosis. The examiner found that with respect to functional loss, the contributing factors of the Veteran's flatfoot disability were excess fatigability, pain on movement, pain on weight-bearing, interference with standing, and lack of endurance. The examiner noted that the Veteran used a wheelchair, cane, and walker as assistive devices and that the wheelchair and walker were predominantly used for the Veteran's painful hips, right knee, and low back conditions. The examiner also provided that the Veteran's predominant functional limitations were due to his chronic bilateral hip, right knee, and lumbosacral osteoarthritis pain. While the VA examination reports and medical evidence of record indicate that the Veteran's foot-related complaints might be due, at least in part, to his service-connected bilateral flatfoot disability, it remains unclear whether his reported symptoms and functional limitations are attributable to non-service connected conditions rather than his service-connected flatfeet. As such, a clarifying medical opinion regarding the symptoms and functional limitations that are attributable to the Veteran's flatfoot disability, as opposed to other non-service connected disabilities, is needed on remand. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Mittleider v. West, 11 Vet. App. 181, 182 (1998); Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from the examiner who conducted the April 2014 VA foot conditions examination. If this examiner is no longer available, obtain another opinion from an appropriate examiner that addresses the nature and severity of the Veteran's flatfoot disability. The claims folder, including this remand, must be made available to, and be reviewed by, the examiner. If, and only if, determined necessary by the examiner, the Veteran should be scheduled for another VA examination. The examiner should respond to the following: The examiner is requested to clarify the degree to which the symptoms and associated functional impairment of the Veteran's service-connected bilateral flatfoot disability can be differentiated from other non-service connected conditions. In doing so, the examiner should identify the symptomatology that is attributable solely to the Veteran's bilateral flatfoot disability, as opposed to any non-service connected disorder, to include osteoarthritis of the bilateral hips, knees, shoulders, and back; bilateral hammertoes; degenerative changes of the bilateral feet; and possible polyneuropathy of the bilateral feet. If any symptomatology or functional impairment associated with the Veteran's bilateral flatfoot disability cannot be differentiated from that associated with any non-service connected disorder, the examiner should provide a detailed explanation as to why. In providing the requested clarification, the examiner should, at a minimum, address symptomatology such as numbness, tingling, pain, burning, reduced muscle strength, excess fatigability, lack of endurance, and interference with standing and walking, as reflected in the VA examination reports noted above, in addition to various VA podiatry treatment records dated from September 2008 to present. The examiner should provide a complete rationale for any opinion expressed and should reconcile any opinion with all other clinical evidence of record, including relevant lay statements and medical records. If the examiner cannot provide an opinion, he or she must confirm that all procurable and assembled data was fully considered, and provide a detailed explanation for why an opinion cannot be rendered. 3. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claim. If the benefit sought is not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case, and return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that any claim that is 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). _________________________________________________ MICHAEL LANE 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) (2016).