Citation Nr: 1804668 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-13 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a higher initial rating for bilateral pes planus with degenerative joint disease of the feet, in excess of 10 percent prior to July 7, 2016, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2002 to December 2010. This matter initially came before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. That rating decision, in pertinent part, granted service connection and an initial rating for bilateral pes planus. In February 2015, the Board denied a higher initial rating for bilateral pes planus. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to a June 2015 Joint Motion for Partial Remand (JMPR) filed with the Court, that part of the Board decision was vacated and remanded. The parties to the JMPR found that in denying a higher rating for pes planus, the Board had failed to adequately address evidence of bilateral degenerative joint disease of the feet and, in doing so, had failed to adequately consider whether the service-connected pes planus could have been rated under a diagnostic code permitting separate ratings for each foot such as Diagnostic Code 5284, pertaining to other foot injuries. See 38 C.F.R. §§ 4.26, 4.71a (2017). Accordingly, in August 2015, the Board found that the intertwined issue of entitlement to service connection for bilateral degenerative joint disease of the feet had been raised by the record and remanded the appeal for further development. In June 2016, the Board again remanded the appeal. In May 2017, the Board granted service connection for bilateral degenerative joint disease of the feet and remanded the issue of entitlement to a higher initial rating for bilateral pes planus. REMAND As noted above, the Veteran first appealed the initial evaluation for bilateral pes planus, which the Board denied in February 2015, but after the JMPR observed that there were symptoms other than pes planus related to the Veteran's feet, the Board raised, and eventually granted, the issue of entitlement to service connection for bilateral degenerative joint disease of the feet. In this regard, in May 2017, the Board granted service connection for bilateral degenerative joint disease of the feet and remanded the issue of entitlement to a higher initial rating for bilateral pes planus. The Board observed that since both disorders shared symptoms in common, the initial evaluation of bilateral degenerative joint disease should be implemented before the Board could properly evaluate the rating for a higher initial rating for bilateral pes planus. In a May 2017 rating decision, the AOJ implemented the award of service connection for bilateral degenerative joint disease of the feet. In doing so, the AOJ essentially found that a separate rating for degenerative joint disease was not warranted but that that disability should be incorporated into the already service connected bilateral pes planus. Accordingly, the AOJ noted that the "evaluation for Bilateral Pes Planus is now called Bilateral Pes Planus with bilateral degenerative joint disease [sic]." While the evaluation did not change, the AOJ changed the diagnostic code from Diagnostic Code 5276, applicable to acquired flatfoot, to Diagnostic Codes 5003-5276. See 38 C.F.R. § 4.71a (2017). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The hyphenated diagnostic code in this case indicates that degenerative arthritis under Diagnostic Code 5003 is the service-connected disability and that acquired flatfoot under Diagnostic Code 5276 is the residual disability. In reviewing the evidence of record, the Board observes that the most recent examination, which took place in July 2016, does not appear to address the Veteran's degenerative joint disease of the feet. In this regard, the examination report reflects that the examiner indicated that the only diagnosis associated with the condition being evaluated was flatfoot and under the section "Foot injuries and other conditions," the examiner did not provide a response. By comparison, a September 2015 VA examination of the feet reflects that the conditions being evaluated were both flatfoot and degenerative joint disease of the feet and the examiner there described both disabilities separately and in detail. Significantly, the JMPR found that in denying entitlement to a higher initial rating for bilateral flat feet, the Board did not fully explain why the service-connected disability should be rated under Diagnostic Code 5276 in light of the fact that the evidence appeared to show additional symptoms not attributable to pes planus. The JMPR specifically observed that doing so was prejudicial to the Veteran because there were other potentially applicable diagnostic codes, namely Diagnostic Code 5284, which did not prohibit rating each foot separately and therefore could allow for a higher rating by application of the bilateral factor under 38 C.F.R. § 4.26 (2017). Accordingly, the Board finds that the most recent July 2016 examination is not adequate because it fails to address the service-connected degenerative joint disease of the feet. This may have influenced the AOJ's decision to rate the disability under Diagnostic Code 5276 since the examination implies that the only disability currently resulting in any symptomatology is pes planus. Accordingly, the Board finds that a new examination is required which fully evaluates and addresses both service-connected disabilities. The Board also notes that the July 2016 examination reflects that the Veteran has pain with weight bearing and so, to the extent feasible, the examiner should include any joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. See Southall-Norman v. McDonald, 28 Vet. App. 346, 348 (2016); Correia v. McDonald, 28 Vet. App. 158 (2016). After an adequate examination is conducted, the AOJ should reevaluate the disability, to include considering whether evaluation under a different diagnostic code is warranted. In addition, the Board notes that the most recent November 2017 supplemental statement of the case indicates that the evidence of record includes a "February 23, 2017 transcript of hearing at BVA." There is no such document of record and no indication that a Board hearing has been conducted in connection with this appeal. To the extent there is evidence that is not currently associated with the claims file, the AOJ should associate this with the record and/or amend the next supplement statement of the case to accurately reflect the evidence of record. Finally, any outstanding VA treatment records should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from November 2017 to the present. 2. Associate with the claims file any February 23, 2017 Board hearing transcript or amend the next supplement statement of the case to accurately reflect the evidence of record. 3. The Veteran must be afforded a VA examination to evaluate the current severity of his bilateral pes planus with degenerative joint disease of the feet. The electronic claims folders should be made available to the examiner for review in conjunction with the examination and the examiner should acknowledge such review in the examination report. Any indicated studies should be performed. The examination should be conducted in accordance with the current disability benefits questionnaires or examination worksheets applicable to the feet. The examiner must evaluate and fully describe both service-connected disabilities: (1) bilateral pes planus and (2) degenerative joint disease of the feet. To the extent feasible, the examiner should fully describe and distinguish any impairment arising from pain on active motion, passive motion, in weight-bearing, and in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The rationale for all opinions expressed must be provided. 4. After completion of the above, readjudicate the claim. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an 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). _________________________________________________ GAYLE E. STROMMEN 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).