Citation Nr: 1804879	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-26 559	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to a disability evaluation greater than 20 percent for extensor tendonitis, left foot. 

2.  Entitlement to a disability evaluation greater than 20 percent for residuals of a fracture of the left tibia.  


REPRESENTATION

Appellant (Veteran) represented by:	Iowa Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to June 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  In September 2017, the Veteran testified before the Board in a videoconference hearing convened at the RO.  A transcript of the hearing is included in the record.  The record consists of electronic claims files and has been reviewed.   

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

A remand is warranted for additional medical inquiry into the Veteran's increased rating claims.  

The Veteran's left ankle/foot/tibia disorder is rated under Diagnostic Codes (DCs) 5271 and 5284 of 38 C.F.R. § 4.71a.  Ankle disability is rated under DC 5271, which authorizes a maximum rating of 20 percent.  Foot disability is rated under DC 5284, which authorizes a maximum rating of 30 percent.  As the Veteran has been rated as 20 percent disabled under each DC, the sole question before the Board is whether the 30 percent rating is warranted for foot disability under DC 5284.  

During the September 2017 Board hearing, the Veteran indicated that his left foot disability had worsened since the prior VA examination of the foot in June 2013.  In October 2017, he underwent examination of his left ankle and tibia, but not of the foot.  As the Veteran maintains that his left foot is severely disabled, and has worsened since the June 2013 VA examination, the case should be remanded for a new exam.  See Green v. Derwinski, 1 Vet. App. 121 (1991).

The Board also notes that, following the June 2014 Statement of the Case (SOC) and prior to transfer of the case to the Board, pertinent evidence had been included in the claims file (see e.g., September 2014 VA treatment records addressing foot disability).  The case must be remanded for readjudication of the claims.  See 38 C.F.R. §§ 19.31, 20.1304 (2017).  Lastly, the claims on appeal are inextricably intertwined and must be decided together.  See Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001).

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include any outstanding VA treatment records, the most recent of which are dated in December 2014.  All records/responses received must be associated with the electronic claims file. 

2.  Schedule the Veteran for a VA examination to determine the nature and severity of this service-connected left foot disability.  The examiner should review the claims folder, interview and examine the Veteran, detail the nature of his foot disability, and then comment on whether, in the examiner's opinion, the foot disability is moderate, moderately severe, or severe.  

3.  After the completion of any action deemed appropriate in addition to that requested above, the Veteran's claims should be readjudicated.  All evidence received since the June 2014 SOC should be considered.  If any benefit sought remains denied, the Veteran should be provided a Supplemental SOC.

The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 (2012). 



_________________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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).