Citation Nr: 21010116 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-21 999 DATE: February 24, 2021 REMAND Entitlement to an initial disability rating in excess of 20 percent for service-connected right-foot injury is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A Board hearing was conducted via video conference with the RO in Detroit, Michigan. A transcript of this hearing is contained within the electronic claims file. See May 17, 2019, Hearing Transcript (Tr.). In December 2019, the Board previously remanded this claim at the Veteran’s request so that the RO could review in the first instance evidence added to the claims file since the most recent statement of the case (SOC). In July 2020, VA issued a supplemental SOC (SSOC) evaluating all the evidence of record, continuing its denial of the Veteran’s request for an increase. The Veteran’s representative argues that a 30 percent rating is warranted or, in the alternative, that remand is required for an updated examination, as the Veteran’s right foot condition has worsened since his first and only VA examination back in August 2014. See January 28, 2021, Written Brief Presentation at 2. Upon review of the evidence, the Board finds that additional remand regrettably is required. The rating decision on appeal granted the Veteran service connection for his right foot condition; he was awarded a 10 percent disability rating, under Diagnostic Code (DC) 5284, effective December 12, 2012. The Veteran timely appealed. During the interim of that appeal, VA awarded the Veteran a 20 percent rating also effective December 12, 2012. Therefore, the issue now is as it appears on this decision’s first page. The DCs for the feet encompass plantar fasciitis, flatfoot, weak foot, claw foot, anterior metatarsalgia, hallux valgus, hallux rigidus, hammer toe, and malunion or nonunion of the tarsal or metatarsal bones. For any foot condition not articulated within the rating schedule, DC 5284 permits a severe, moderately severe, and moderate characterization, warranting a 30, 20, or 10 percent evaluation, respectively. Actual loss of use of the foot warrants 40 percent. The United States Court of Appeals for Veterans Claims (CAVC) has held that “when a condition is specifically listed in the [rating s]chedule, it may not be rated by analogy.” Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The CAVC found in this case that where a veteran suffers from specifically enumerated conditions among the DCs for the feet, he or she analogously may not be rated under DC 5284, despite how many foot conditions are present, assuming all are enumerated ones. Ibid. As noted, the Veteran’s only VA examination occurred in August 2014—almost seven years ago. Under Section I—Diagnosis—the examiner notes that the Veteran has a foot injury; when asked to specify what the injury is, the report is left blank. Sections IV–VIII indicate that the Veteran does not suffer from Morton’s disease, metatarsalgia, hallux valgus, hallux rigidus, or claw foot. Section III—Flat Foot—however, frustrates the Board’s review of the evidence. That section indicates that the Veteran has pain on use of his right foot, which is accentuated on manipulation. When asked about the effects os use of arch supports, there is no response provided (just months later, however, an April 2015 VA medical center (VAMC) record notes that the Veteran uses prescribed foot orthotics). Despite all this, Section III never directly asks whether the Veteran has flatfoot. This particularly is concerning where the first question in all other sections previously noted (IV–VIII) begin by asking whether the Veteran has the respective condition. Section X—Foot Injuries and Other Conditions—is where the Board would expect to see more elaboration on the Veteran’s condition, as it appears that he has no other foot condition listed in the foot DCs. Surprisingly, however, the examiner noted that the Veteran did not have any other foot condition “not already described.” But at no time has the examiner indicated what the Veteran’s foot condition is and simultaneously has indicated at the possibility of a flatfoot diagnosis. Thus, the Board finds that the August 2014 VA examination is inadequate for rating purposes. Its lack of clarity in providing a definitive diagnosis of the Veteran’s right foot condition, triggers the possibility that VA has run afoul of the CAVC’s mandate in Copeland. If the Veteran does have flatfoot, as potentially indicated by the October 2014 examination report, then VA is required to re-rate him under DC 5276. See 27 Vet. App. at 337. Additionally, and to the representative’s argument, the Veteran has not had an examination to assess the severity of his foot condition—whatever that may be—in nearly seven years. Where the record does not adequately reflect the current state of a veteran’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). While there are numerous VAMC records in the claims file, they focus heavily on the Veteran’s subjective complaints of pain and do not contain any sort of detailed examination. Thus, the Board finds that VA’s duty to assist requires that it procure an updated, adequate examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.”). The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Afford the Veteran the opportunity to attend an examination to assess the nature and severity of his right foot disability. The examiner shall indicate any and all conditions from which the Veteran’s right foot suffers. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel 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.