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).