Citation Nr: 0001239 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-37 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating for bilateral pes planus with bunionectomy, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to October 1984. This case comes before the Board of Veterans' Appeals (Board) by means of a May 1995 rating decision rendered by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein an increased disability evaluation for bilateral pes planus with bunionectomy was denied. During the pendency of the veteran's appeal, he relocated to Georgia. Accordingly, the Atlanta, Georgia, RO assumed the role of the agency of original jurisdiction for this appeal. At an October 1999 hearing before the undersigned Board Member sitting in Washington, D.C., the veteran indicated that he had arthritis in his ankles secondary to his bilateral foot disability. A review of the claims folder indicates that this matter has not been adjudicated. The Board refers the RO's attention to this matter for further consideration as appropriate. REMAND A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. The United States Court of Veterans Appeals (Court) has held that VA has a duty to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1999), which requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). After a review of the veteran's claims folder, the Board is of the opinion that a VA examination would be probative. The duty to assist "includes the conduct of a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The most recent VA examination of his feet for compensation and pension purposes (C&P examination) is dated in September 1995. Similarly, the most recent post service medical records showing treatment for the veteran's foot disabilities are dated in August 1996. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). As the most recent medical treatment records are over three years old and the most recent C&P examination is over four years old, a new VA examination is prudent. Additionally, the Board notes that at an October 1999 Board Hearing, the veteran raised the issue of extraschedular consideration of his bilateral foot disability. The Court has specifically addressed the issue of whether the Board has jurisdiction to assign an extraschedular rating in the first instance, i.e., without prior referral by an agency of original jurisdiction to the Under Secretary for Benefits or the Director of the Compensation and Pension Service and a decision either to award or to deny an extraschedular rating by either of those officials. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court determined that the delegations of authority set forth in 38 C.F.R. §§ 2.69, 3.321(b)(1) clearly provide that the proper procedure for extraschedular consideration of a claim under 38 C.F.R. § 3.321(b)(1) requires consideration in the first instance by the Under Secretary for Benefits (formerly the Chief Benefits Director) or the Director of the Compensation and Pension Service. The Court went on to say in Floyd that the correct course of action for the Board in extraschedular consideration cases is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 3.321(b)(1), and that such course of action is supported by 38 C.F.R. § 19.9, which governs the Board's operation. The Court concluded, therefore, that because the regulations are clear about specifically delegating the authority to assign extraschedular ratings to the Under Secretary for Benefits and the Director of the Compensation and Pension Service, not the Board, in the first instance, the Secretary has by necessity excluded the Board from exercising this authority in the first instance. In addition to not having jurisdiction to assign an extraschedular rating for bilateral pes planus with bunionectomy, the Board finds that a denial of an extraschedular rating by the Board in the first instance would be prejudicial under Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Based on the foregoing, and to ensure that the appellant receives his procedural due process rights, the Board has determined that his claim must be REMANDED to the RO for the following actions: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his bilateral pes planus with bunionectomy since August 1996. After securing the necessary release, the RO should obtain these records. 2. The veteran should be afforded a VA examination with the appropriate health care professional to ascertain the current level of disability shown by the veteran's bilateral pes planus with bunionectomy. The claims folder should be made available to the examiner for review before the examination. The examiner should be requested to offer an opinion as to whether the veteran's current level of disability resulting from his bilateral pes planus with bunionectomy results in a functional loss of use of either one, or both, of his feet. 3. Thereafter, the RO should evaluate the veteran's bilateral pes planus with bunionectomy with consideration of the provisions regarding an extraschedular evaluation, as set forth in 38 C.F.R. § 3.321(b)(1) (1999). 4. Upon completion of the foregoing, the RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. Specific attention is directed to the examination report. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 5. The RO should then review the issue on appeal. If the decision remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. 6. The RO is to inform the veteran that he may submit additional evidence in support of his claims while his case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO should also advise him that failure to comply with the development requested herein, without good cause shown, may result in adverse action with regard to his claim, to include the denial thereof. The Board expresses its gratitude in advance to the RO for assisting in the requested development. The purpose of this REMAND is to obtain additional evidence. No inference should be drawn regarding the final disposition of this claim. The veteran is hereby informed that failure to report for a scheduled examination or failure to cooperate with the requested development may have an adverse effect upon his claim. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. MARK W. GREENSTREET Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).