Citation Nr: 19129155 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 12-01 173 DATE: April 16, 2019 REMANDED The issue of entitlement to increased ratings for left foot disability featuring calcaneal spurs with hallux valgus, currently rated 10 percent disabling prior to August 12, 2016, and rated 20 percent disabling thereafter, is remanded. The issue of entitlement to increased ratings for right foot disability featuring calcaneal spurs with hallux valgus, currently rated 10 percent disabling prior to August 12, 2016, and rated 20 percent disabling thereafter, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty for training from July 1992 to March 1993, and on active duty from January 1994 to March 1996. These matters on appeal before the Board of Veterans’ Appeals (Board) arise from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which granted a 10 percent rating for the Veteran’s service-connected left foot disability and a 10 percent rating for the Veteran’s service-connected right foot disability, both effective February 9, 2010. A subsequent August 2016 rating decision awarded separate 20 percent ratings effective August 12, 2016, for the Veteran’s service connected left foot disability and right foot disability. However, as that award did not represent a total grant of benefits sought on appeal, the claim for increase remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). This case was previously before the Board in July 2017, when the Board denied the claims on appeal. At that time, the Board determined that the issue of entitlement to a TDIU is included in the Veteran’s appeal consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the Board’s July 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the parties to the appeal (the Veteran, through his attorney, and a representative from VA General Counsel) filed a Joint Motion for Remand of the Board’s decision (Joint Motion). The parties agreed that the Board’s decision should be vacated and remanded insofar as it had denied TDIU and denied increased ratings for the service-connected disabilities of the feet. The Court granted the Motion in August 2018. The case has now returned to the Board for further appellate review and readjudication consistent with the terms of the Joint Motion. The July 2017 Board decision was issued by a Veterans Law Judge (VLJ) other than the undersigned. The case has now returned to the Board and been reassigned to the undersigned VLJ for further appellate review at this time. The Veteran’s claims seeking entitlement to service connection for disabilities of the hips, back, and the left knee were remanded in the July 2017 Board decision to ensure the issuance of a Statement of the Case (SOC). In August 2017, the required statement of the case was issued by the Agency of Original Jurisdiction (AOJ). Although the Veteran and his representative have recently indicated a desire to pursue those claims further, the issues were not perfected to the Board for appellate review within the applicable period following the August 2017 SOC. Accordingly, those service connection issues are not before the Board at this time, and they shall not be further addressed in this decision. 1. The issue of entitlement to a rating in excess of 10 percent prior to August 12, 2016, and in excess of 20 percent thereafter, for plantar heel spur, left foot, is remanded. 2. The issue of entitlement to a rating in excess of 10 percent prior to August 12, 2016, and in excess of 20 percent thereafter, for plantar heel spur, right foot, is remanded. The Board finds that a remand is required for issuance of a Supplemental Statement of the Case (SSOC). Although the Camp Lejeune Families Act of 2012 allows the Board to consider new evidence submitted by an appellant after certification to the Board without waiver (see 38 U.S.C. § 7105 (a)), that law does not apply to evidence created or obtained by VA, to include medical examinations or opinions. In the present appeal, after issuance of an August 2016 SSOC, wherein the RO adjudicated the issues on appeal, numerous VA treatment and examination reports, notably the February 2018 and August 2018 VA feet Disability Benefit Questionnaires (DBQs) from VA fee-basis / contractor examiners, were received into the record after its certification to the Board. This appears to be the result of confusion arising at the RO involving the ongoing pendency of the Veteran’s appeal after the Board’s July 2017 decision was appealed to the Court. The RO has initiated ongoing development and processing of matters directly intertwined with the determination of the Veteran’s foot disability ratings in this case. In March 2018, the RO issued a rating decision in which it notified the Veteran that the RO proposes to reduce his right foot disability rating from 20 percent to 10 percent and proposes to reduce his left foot disability rating from 20 percent to 10 percent. Later in March 2018, the Veteran’s representative submitted a written request for review of this determination. In June 2018, the Veteran’s representative filed on his behalf a new claim seeking to establish entitlement to increases in his disability ratings for the feet. Although these matters are encompassed in the foot disability increased rating issues in appellate status before the Board at this time, it is clear that development and processing of these matters to determine the appropriate disability ratings for the Veteran’s feet are ongoing at the RO. The Board observes that the RO actions on these matters now also include processing and development of the Veteran’s repeated claim of entitlement to TDIU, as the RO issued a new rating decision denying TDIU in September 2018, and the Veteran submitted a notice of disagreement with that decision requesting de novo review of the matter in December 2018, and again in January 2019. The RO has not issued any SSOC, nor any other manner of decisional document or rating decision, addressing the new evidence developed after the August 2016 SSOC. In light of the absence of any decisional document presenting adjudicative consideration of the pertinent new evidence, including pertinent VA-generated evidence, and the appearance of possibly still-pending proposed rating reduction consideration and increased rating consideration at the RO, the Board must remand the claim to have the AOJ issue an SSOC addressing all evidence received since issuance of its August 2016 SSOC. 38 C.F.R. §§ 19.31 (b)(2)-(3) (dictating that a supplemental statement of the case should be issued when a material defect exists in the statement of the case or the statement of the case is inadequate for any reason), and 19.37. During the processing of this remand, the AOJ shall have the opportunity to consolidate any and all pending processes and actions associated with the Veteran’s foot disability ratings that should properly be exclusively considered as part of this appeal. 3. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Pending adjudications and forthcoming decisions on the issues discussed above could significantly impact a decision on the issue of entitlement to a TDIU. Accordingly, the issues are inextricably intertwined. A remand of the issue of entitlement to a TDIU is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). The matters are REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including any additional VA treatment records (such as those that may have been created since the last such update of the claims-file). 2. After completing any additional notification and/or development deemed warranted, readjudicate the issues on appeal with consideration of the complete updated contents of the evidentiary record. If any benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case that considers all of the evidence added to the record since the last statement of the case and afforded the appropriate time period for response. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel