Citation Nr: 1022154 Decision Date: 06/15/10 Archive Date: 06/24/10 DOCKET NO. 08-06 399A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chronic left shoulder strain. 2. Entitlement to a compensable rating for pes planus, right. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from February 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued in June 2007 and August 2007 by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in December 2009. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Essentially, the Veteran contends that his service-connected left shoulder disability and right foot (pes planus) disability have worsened in severity and that higher ratings would more accurately reflect his current level of disability. He also asserts that he has not been afforded complete VA examinations for rating purposes. For the reasons explained below, the Board agrees. With respect to both claims on appeal, at his December 2009 Travel Board hearing, the Veteran testified, in essence, that his service-connected left shoulder and right foot disabilities resulted in individual unemployability. See December 2009 Hearing Transcript, p. 13. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) held, in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of an increased rating claim when such claim is raised by the record. As the Veteran has raised the contention here, it should be addressed as part of the appeal. Entitlement To a Rating in Excess of 10 Percent for Chronic Left Shoulder Strain: During the Veteran's December 2009 Travel Board hearing, he testified that he underwent arthroscopic surgery of the left shoulder in May 2009. A May 11, 2009, private operative report contained in the claims file confirms such procedure and delineates the following post-surgical diagnoses: scapulothoracic bursitis; tendinopathy; coracoids impingement with subscapularis partial tear; partial tear of supraspinatus; impingement syndrome; and AC arthritis. See Tallahassee Outpatient Surgery Center, Operative Note, May 11, 2009. A May 19, 2009, post-operative check-up report indicates that the Veteran had no significant complaints or problems and that he was "stable, status-post surgery." He was asked to return to the clinic in six to eight weeks for a follow-up. See Tallahassee Orthopedic Clinic Report, Dr. Jordan, May 19, 2009. Unfortunately, other than the two private medical reports outlined above, the claims file does not contain any medical evidence which would accurately reflect the Veteran's current, post-surgical condition/symptoms. In this regard, it is noted that the Veteran testified that his range of motion had actually decreased since the May 2009 surgery and that he was continuing to experience left shoulder pain, popping, and loss of grip strength in the left hand. See Hearing Transcript, pp. 10-12. In light of the fact that the Veteran was last afforded a VA examination in April 2007, and that he has since undergone a surgical procedure and now complains of increased pain/decreased range of motion, a new VA examination is required in order to evaluate the current severity of the Veteran's service connected left shoulder disability. This should be accomplished upon remand as outlined in the directives below. Further, it is noted that the Veteran has reported continued VA and private treatment for his left shoulder condition, including post-surgical physical therapy from May 2009 to July 2009. See Hearing Transcript, pp. 13-14. No such records (other than the two surgical/post-surgical reports outlined above) have been associated with the claims file. As such, upon remand, the RO should obtain all VA records relating to treatment of the left shoulder, from May 2009 to the present, as well as any post-surgical private treatment identified by the Veteran as outlined in the directives below, to include follow-up treatment/physical therapy records from the Tallahassee Orthopedic Clinic (for which an Authorization and Consent to Release Information, VA Form 21- 4142, is already of record). Entitlement To A Compensable Rating For Pes Planus, Right: At the outset, it is noted that in June 2009, prior to transfer of the appeal Board, the Veteran submitted additional evidence in the form of a private treatment record which directly relates to the issue at hand. See May 16, 2009 VA Southeastern Podiatry Consult, Dr. Reynolds. Notably, the Veteran has not submitted a waiver of initial consideration of the newly submitted evidence by the agency of original jurisdiction (AOJ). Therefore, a supplemental statement of the case (SSOC) must be issued which takes into consideration the evidence submitted in June 2009. See 38 C.F.R. §§ 19.31, 19.37 (2009). The Board also finds that a current VA examination is necessary in order to determine the severity of the Veteran's pes planus of the right foot. Indeed, the May 2009 private examination report from Dr. Reynolds reflects that the Veteran's pes planus is presently manifested by "excessive" STJ pronation and near-constant pain. This same report shows that Dr. Reynolds recommended custom molded orthotics, in addition to the prescription, Lyrica, for treatment. Other private medical records from Dr. Spooner, dated from October 2007 to June 2008, also indicate that the Veteran's right foot condition has worsened/deteriorated since the time of his last VA examination in April 2007. See Letter from Tallahassee Podiatry Associates, P.A., Dr. Spooner, June 2008. For example, a June 2008 letter from Dr. Spooner shows that he was treating the Veteran's foot pes planus with Cortisone injections, orthotics, and shoe gear changes. A February 2008 treatment note from Dr. Spooner reflects that the Veteran's foot pain was so severe at times that he had to take days off from work. An October 2007 treatment report shows that the "powerstep" inserts/orthotics had improved his condition, and that there was no swelling, but that his feet were still bothering him. Most recently, at his Travel Board hearing in December 2009, the Veteran testified that his pes planus condition had worsened and that his orthotics were no longer helping him. See Hearing Transcript, p. 7. Given Dr. Reynolds's treatment report showing "excessive" pronation and pain, and further considering the Veteran's credible testimony regarding decreased mobility/increased pain, the Board finds that a VA examination should be conducted to assess the current severity of the service- connected right foot disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment records, from 2009 to the present, pertaining to the Veteran's left shoulder and/or right foot disabilities. 2. Contact the Veteran and obtain the names and addresses of all private medical care providers who have treated him for the service-connected left shoulder disability since May 2009 (i.e., status post-arthroscopy). These records should include, but are not limited to, treatment records from the Mariana Orthopedic and Sports Medicine Clinic (physical therapy), the Tallahassee Orthopedic Clinic, and any post-surgical follow-up treatment records from the Tallahassee Outpatient Surgery Center. After the Veteran has signed the appropriate releases, all outstanding records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the requested development is completed, schedule the Veteran for appropriate VA examination(s) to ascertain the nature and severity of his service- connected left shoulder disability. The claims file should be made available to the examiner for review in connection with the examination. Any medically indicated special tests, including x-rays, should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should list all objective findings due to the service- connected left should disability and should comment on its severity. Range of motion testing should be accomplished and the examiner should report, in degrees, the point at which pain is demonstrated. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. In light of the Veteran's complaints of decreased motor strength/grip in the left upper extremity, the examiner should also specifically comment on any neurological symptomatology/manifestations associated with the left shoulder disability. The examiner should also provide an opinion concerning the impact of the service-connected left shoulder disability on the Veteran's ability to work, and provide supporting rationale for this opinion. In this regard, state how each symptom and objective finding impairs the Veteran's ability to perform activities related to employment. 4. Schedule the Veteran for an appropriate VA orthopedic examination to ascertain the nature and severity of his right foot pes planus. The examiner should specifically comment as to whether the Veteran's pes planus is manifested by deformity (pronation, abduction, etc.), level of pronation (slight, moderate, marked, etc.), inward displacement, the level of inward displacement (slight, moderate, marked, etc.), spasm of the tendo achilles on manipulation, level of spasm of the tendo achilles on manipulation, tenderness on the plantar surfaces of the feet, and degree of tenderness (slight, moderate, extreme, etc) and whether the disability is improved by orthopedic shoes or appliances. The examiner should also specifically indicate what other foot conditions are found to be present, including arthritis, and if so, whether such conditions are the result of bilateral pes planus, as distinguished from symptoms of other disabilities. The examiner should also indicate the nature and extent of any functional impairment, including pain, weakness, fatigability, functional loss, limitation of movement, etc.) that the Veteran experiences as a result of his service- connected pes planus. If the Veteran experiences functional limitation in his right foot that is not due to his pes planus, please so indicate in the record. The examiner should also provide an opinion concerning the impact of the service-connected right foot pes planus disability on the Veteran's ability to work, and provide supporting rationale for this opinion. In this regard, state how each symptom and objective finding impairs the Veteran's ability to perform activities related to employment. 5. Readjudicate the claim for an increased evaluation. Address schedular evaluation, extraschedular consideration, and the Veteran's claim that he is unemployable (i.e. claim for a TDIU) as a result of service-connected chronic left shoulder and/or right foot disabilities. If the action remains adverse to the Veteran, provide the Veteran, and his representative, with a Supplemental Statement of the Case which addresses all evidence since the April 2009 (pes planus) and May 2009 (left shoulder) Supplemental Statements of the Case. Thereafter allow the Veteran an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ KIMBERLY OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).