Citation Nr: 20007261 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 18-13 334 DATE: January 28, 2020 REMANDED For the period on appeal prior to October 11, 2016, entitlement to an increased initial compensable evaluation for the Veteran’s service-connected bilateral foot disability, to include bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served honorably in the U.S. Army from June 1999 to September 1999, from December 2003 to March 2005, and from May 2010 to October 2010, including service in Afghanistan. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s Form 9 indicates that he did not request a Board hearing. In April 2015, the Veteran was awarded service connection for his bilateral pes planus and assigned an initial noncompensable evaluation, effective August 4, 2014, the date of the Veteran’s service connection claim. Subsequently, the Veteran filed a May 11, 2015 Notice of Disagreement (NOD) seeking an increased initial compensable evaluation, and a December 2017 rating decision awarded an increased evaluation of 50 percent, effective October 11, 2016. The Veteran contends that because his NOD was received by VA on May 11, 2015, his service-connected bilateral foot disability warrants an increased evaluation prior to October 11, 2016. The Board notes that a November 2018 rating decision increased the Veteran’s disability rating from zero percent to 10 percent, effective August 4, 2014. However, because this award amounts to less than the maximum benefit available for the Veteran’s service-connected bilateral foot disability, and because the Veteran has indicated that he is not satisfied with a 10 percent disability rating, for the period on appeal prior to October 11, 2016, the Veteran’s increased rating claim for his service-connected bilateral foot disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). For the period on appeal prior to October 11, 2016, entitlement to an increased initial compensable evaluation for the Veteran’s service-connected bilateral foot disability, to include bilateral pes planus, is remanded. Unfortunately, the Veteran’s service connection claim for a bilateral foot disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. As stated above, for the period on appeal prior to October 11, 2016, the Veteran contends that his current bilateral foot disability, to include bilateral pes planus, is entitled to an increased initial compensable evaluation. The Veteran has been afforded VA examinations in February 2015 and in October 2016 to evaluate his current bilateral foot disabilities, and the October 2016 VA examination report indicates that the Veteran underwent surgery at a private hospital in February 2016 for calluses on his left foot; however, no such private treatment records have been obtained by VA or associated with the Veteran’s claims file. Therefore, upon remand, any missing treatment records must be obtained, including any private treatment records generated by the Veteran’s treating podiatrist or other physicians, so that the Veteran’s claim can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. In addition, the October 2016 VA examination fails to consider the Veteran’s private treatment records or to adequately discern whether, prior to October 11, 2016, the Veteran’s bilateral foot disability manifested symptoms more closely approximating an evaluation in excess of 10 percent under Diagnostic Code 5276. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); 38 C.F.R. § 3.159. Accordingly, in light of the foregoing, the Veteran’s bilateral foot disability claim must be remanded for an additional VA opinion to consider all the competent evidence of record, including any outstanding medical records and additional lay statements, and to determine whether his current bilateral foot condition warrants an increased evaluation prior to October 11, 2016. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, this matter is REMANDED for the following action: 1. Send the Veteran a VA Form 21-4142 to authorize the release of records from his private physicians, to include his podiatrist and/or surgeon as referenced in the October 2016 VA examination report and the December 2017 Statement of the Case (SOC). If necessary, make two requests for the authorized records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Obtain any other relevant outstanding private or VA treatment records relating to the Veteran’s claims, including any other relevant VA or private treatment records and associate all such records with the electronic claims file. The AOJ should undertake the appropriate efforts to obtain and to associate with the claims file any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After the above development and any additionally indicated development has been completed, obtain an addendum medical opinion from a medical doctor who has not previously examined the Veteran to determine the severity and manifestations of the Veteran’s bilateral pes planus during the period on appeal prior to October 11, 2016. The examiner must review the claims file and must note such review in the report. The examiner should set forth all findings, with the complete rationale for all conclusions reached, and should cite to medical references to support those conclusions and rationales. The examiner must consider all of the lay statements of record regarding worsening of symptomatology in addition to the elements set forth in Diagnostic Code 5276. If it is not possible to provide an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.