Citation Nr: 18156194 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 15-25 505 DATE: December 11, 2018 REMANDED Entitlement to an increased, compensable disability rating for a scar on the medial right foot, postoperative, from Achilles tear, tendon graft, is remanded. Entitlement to a disability rating in excess of 10 percent for a scar on the right heel, postoperative, associated with Haglund’s deformity, is remanded. Entitlement to an initial, compensable disability rating for right foot deep peroneal sensory neuropathy, great toe and second two toes, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to February 1995 and from July 1995 to November 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple ratings decisions. An October 2012 rating decision granted service connection for right foot deep peroneal sensory neuropathy, great toe and second two toes and assigned a noncompensable disability rating, effective February 6, 2012, and continued a noncompensable disability rating for right foot postoperative achilles tendon tear skin graft medial scar. The Board notes that in November 2012, the Veteran requested that the Agency of Original Jurisdiction reconsider the above issues. The Board construes the Veteran’s November 2012 request as a timely notice of disagreement (NOD) for the October 2012 rating decision. See 38 C.F.R. § 20.201 (Prior to March 24, 2015, any written communication from the Veteran or his/her representative expressing disagreement or dissatisfaction with an adjudication and a desire to contest the result constituted a valid notice of disagreement). An October 2013 rating decision continued the 10 percent disability rating for right foot tender heel scar. The Veteran submitted a timely NOD in March 2014 concerning this issue. In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. 1. Entitlement to an increased, compensable disability rating for a scar on the medial right foot, postoperative, from Achilles tear, tendon graft; 2. Entitlement to a disability rating in excess of 10 percent for a scar on the right heel, postoperative, associated with Haglund’s deformity; and 3. Entitlement to an initial, compensable disability rating for right foot deep peroneal sensory neuropathy, great toe and second two toes, are remanded. The Board finds that new VA examinations are warranted to assess the current nature and severity of the Veteran’s service-connected right medial foot and heel scars and her right foot deep peroneal sensory neuropathy of the great toe and second two toes. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). During the August 2017 video-conference hearing, the Veteran’s representative stated that the Veteran had four or five scars and the Veteran advised that any amount of pressure applied to her scars causes irritation or pain. The Veteran also advised that her deep peroneal neuropathy causes her constant foot pain and weakness. She described numbness and a pricking sensation to her great toe and next two toes, and asserted that her disability causes an abnormal gait. Thus, considering that the Veteran’s last examinations occurred more than three years ago and the evidence suggesting that her disability picture may have changed, the Board remand is required to schedule the Veteran for current VA examinations. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) (“Where the record does not adequately reveal the current state of the claimant’s disability…the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.”); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2018 to the present. 2. The June 2015 narrative section of the VA examination report shows that the Veteran receives most of her medical treatment at a private clinic in Canon City, Colorado. Ask the Veteran to complete a VA Form 21-4142 for any physicians and facilities adequately identified by the Veteran, including from a private clinic in Canon City, Colorado. Make two requests for the authorized records from any physicians and facilities adequately identified by the Veteran, including from a private clinic in Canon City, Colorado, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right medial foot and right heel scars. (a.) The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right medial foot and right heel scars alone and discuss the effect of the Veteran’s scars on any occupational functioning and activities of daily living. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected right foot deep peroneal sensory neuropathy, great toe and second two toes. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right foot deep peroneal sensory neuropathy, great toe and second two toes alone and discuss the effect of her right foot deep peroneal sensory neuropathy, great toe and second two toes, on any occupational functioning and activities of daily living. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel