Citation Nr: 1756479 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 13-35 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 10 percent for right foot hallux rigidus, hallux valgus, degenerative changes at the 1st MP joint and plantar calcaneal spur, claimed as right foot injury. REPRESENTATION Appellant represented by: Dale K. Graham, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in October 2016. A transcript has been associated with the record. The Veteran's representative was not present at the hearing; however, the Veteran elected to proceed. After the hearing, the Veteran submitted additional evidence that has not been considered by the RO. In this regard, the Board observes that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), provides that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In the instant case, the Veteran's substantive appeal was received in December 2013. As such, the Board may properly consider such evidence. However, the Board also notes that additional VA clinical records were associated with the record that have not been considered by the RO. As this evidence was not submitted by the Veteran, the new regulation is not applicable. Nevertheless, as the Board has decided herein to remand, there is no prejudice to the Veteran as the RO will have the opportunity to consider this evidence. The issue of entitlement to service connection for a left foot disorder has been raised by the record in an October 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased rating for her service-connected right foot disability. The Veteran was most recently afforded a VA examination in October 2013, over fours year ago. Importantly, in Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. Unfortunately, the October 2013 examination for the feet does not comply with the new requirements outlined by the Court in Correia. In this regard, there is no indication that there was any joint testing conducted for pain on both active and passive motion, in weight-bearing and nonweight-bearing for either of the Veteran's feet. Further, significantly, although the Veteran has been awarded her current 10 percent rating for moderate foot injuries under 38 C.F.R. § 4.71a, Diagnostic Code 5284, the examiner failed to opine whether the Veteran's foot injury could be characterized as moderately severe or severe to warrant a higher rating under this code. Moreover, the Veteran testified that she experienced increasing right toe pain as well as functional impairment. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In light of the above, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's right foot disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Lastly, the Veteran receives continuing treatment for her service-connected disability at the VA. The most recent records associated with the claims file date from July 2015. In light of the need to remand, the Board finds that efforts to obtain any additional VA treatment records dated from July 2015 to the present. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records from July 2015 to the present. 2. The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of her service-connected right foot hallux rigidus, hallux valgus, degenerative changes at the 1st MP joint and plantar calcaneal spur. 3. Readjudicate the appeal. 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. §§ 5109B, 7112 (2014). _________________________________________________ R. FEINBERG 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) (2017).