Citation Nr: 1808903	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  11-33 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for bilateral pes planus prior to October 11, 2011, and in excess of 50 percent thereafter.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

K. Hughes, Counsel


INTRODUCTION

The Veteran had active duty service from June 1982 to June 1985. 

This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

In September 2013, a Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. 

The issue of entitlement to an evaluation in excess of 30 percent for bilateral pes planus was remanded for further development in August 2014.  The additional development ordered in the Board remand has been completed and the claim has been re-certified to the Board. 

An interim April 2015 rating decision granted an increased 50 percent rating for bilateral pes planus from October 11, 2011, the date of medical evidence (VA treatment) showing increased disability.  As the staged rating prior to October 11, 2011 provides for less than the maximum schedular rating available for bilateral pes planus and the Veteran has not expressed satisfaction with the rating, the matter of an evaluation in excess of 30 percent for bilateral pes planus prior to October 11, 2011 remains in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993).

The September 2017 Informal Hearing Presentation notes that the Veteran has "refined his contention" to include consideration of unemployabilty "to reflect the severity of his disability symptoms."  Although review of the record shows that the Veteran has been employed during the appeal period, it is noted that a claim for a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU) otherwise due to the Veteran's service-connected disabilities is a separate claim, which the Veteran has not raised and has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  38 C.F.R. § 19.9(b) (2017).  Should the Veteran wish to file a claim for TDIU based on his combined disabilities, he is advised to file the VA claim form specific to TDIU (VA Form 21-8940).

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


REMAND

Since the most recent January 2015 Supplemental Statement of the Case (SSOC), VA has received additional evidence regarding the Veteran's bilateral pes planus consisting of VA treatment records, private treatment records which include a February 2016 X-ray report in connection with the Veteran's complaints of pain and an April 2016 Ankle Conditions Disability Benefits Questionnaire (DBQ) without a waiver of AOJ consideration.  38 C.F.R. § 20.1304(c) (2017).  In addition, the September 2017 Informal Hearing Presentation from the Veteran's representative specifically indicates that the Veteran does not waive such consideration.  Therefore, the Board will remand this issue so that the AOJ may consider evidence added to the record since the January 2015 SSOC.

Accordingly, the case is REMANDED for the following action:

Obtain any outstanding relevant VA or private treatment records identified by the Veteran or his representative.  All records obtained since the January 2015 SSOC, to include the VA and private treatment records and April 2016 Ankle Conditions DBQ, must then be reviewed by the AOJ.  Following review of this evidence, if the benefit sought on appeal is not granted to the fullest extent, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
M. C. GRAHAM
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).