Citation Nr: 1801331 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 10-04 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 30 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Kenneth Lavan, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran presented sworn testimony in support of his appeal for an increased disability rating for bilateral pes planus during a December 2011 hearing before the undersigned Veterans Law Judge (VLJ). In July 2012, the Board remanded this matter for further development. In September 2015, the Board once again remanded this matter for further development. Also listed on the title page of that decision were the issues of entitlement to service connection for a disability of the right ankle; service connection for bilateral hearing loss; service connection for tinnitus; service connection for neuropathy of the bilateral lower extremities; service connection for a left shoulder condition; and service connection for sleep apnea. With the exception of the right ankle issue, the Board requested that the Veteran be issued a statement of the case as it related to these other issues. The Board also requested that the Veteran be scheduled for a videoconference hearing before a VLJ at the RO regarding the claims for entitlement to service connection for a bilateral knee disability, a low back disability, a bilateral hip disability, bilateral bunions, and a right ankle condition. Subsequent to the Board remand, the RO, in an April 2016 rating determination, granted service connection for gastrocnemius equinus with Achilles tendon shortening, right ankle; tinnitus; and bilateral hearing loss. The RO also issued a statement of the case at that time addressing the issues of entitlement to a separate 10 percent evaluation for bilateral plantar fasciitis; service connection for neuropathy, bilateral lower extremities; service connection for a chronic disability of the left shoulder; and service connection for sleep apnea. As to the requested hearing for the issues of service connection for a bilateral knee disability, a low back disability, a bilateral hip disability, bilateral bunions, and a right ankle condition, the hearing was scheduled in April 2016. The Veteran was informed of the hearing by way of letter dated March 29, 2016. In an April 2016 letter, the Veteran, through his attorney, requested that the hearing be canceled and that the Veteran be afforded an additional 60 days to submit additional evidence. In May 2016, the Veteran, through his representative, submitted a Form 9 as it related to the issues addressed in the April 2016 statement of the case (entitlement to a separate 10 percent evaluation for bilateral plantar fasciitis; service connection for neuropathy, bilateral lower extremities; service connection for a chronic disability of the left shoulder; and service connection for sleep apnea) and requested a videoconference hearing before a Veterans Law Judge. In December 2016, the Board remanded the issues of service connection for bilateral bunions and entitlement to a disability rating in excess of 30 percent for bilateral pes planus for further development. Although the Veteran's attorney continued to make arguments as to why service connection for bunions should be granted, the Board observes that the RO, in a June 2017 rating determination, granted service connection for hallux valgus (bunions) and assigned a noncompensable disability evaluation. Moreover, the attorney has filed a notice of disagreement with the assigned noncompensable disability evaluations for the hallux valgus disorders and has requested the DRO process. Thus, the Board will no longer address this issue. While the Veteran's attorney has submitted evidence and argument in support of a claim for a total disability evaluation based upon individual unemployability, this matter is currently before the RO and was deferred in a June 2017 rating determination. Thus, the Board will not address this issue. As will be discussed in further detail below, the issue of an evaluation in excess of 30 percent for pes planus must be remanded for further development. The issue of entitlement to a disability rating in excess of 30 percent for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. REMAND In the December 2016 remand, the Board noted that the issue of an increased disability evaluation for pes planus, was inextricably intertwined with a pending appeal that had not been certified to the Board -- the propriety of a rating reduction for service-connected bilateral plantar fasciitis. The Board observed that in May 2016, the Veteran, through his representative, submitted a Form 9 as it related to the issues addressed in the April 2016 statement of the case, which included the issue of entitlement to a separate 10 percent evaluation for bilateral plantar fasciitis, and requested a videoconference hearing before a Veterans Law Judge. The hearing remained pending as it related to this issue, and the Board did not take jurisdiction over the matter at that time. To date, the requested hearing has not been held. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: The RO should review the Veteran's appeal as to his bilateral pes planus, taking into account the procedural status of the service-connected plantar fasciitis, to include the requested hearing for the plantar fasciitis. Thereafter, any further evidentiary development which becomes apparent should be performed. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond. 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. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).