Citation Nr: 0838043 Decision Date: 11/04/08 Archive Date: 11/10/08 DOCKET NO. 02-14 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating for bilateral pes planus, currently rated at 30 percent disabling. 2. Entitlement to a total rating based on individual unemployability (TDIU). 3. Entitlement to an increased rating for plantar fasciitis, right foot, currently rated as 20 percent disabling. 4. Entitlement to an increased rating for plantar fasciitis, left foot, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his neighbor ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to October 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from two decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas: a June 2000 rating decision denied increased ratings for bilateral pes planus, plantar fasciitis of the right foot, and plantar fasciitis of the left foot; and a September 2002 rating decision denied TDIU. In July 2002, with respect to each of the plantar fasciitis disabilities, the RO increased the disability ratings to 20 percent disabling. Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In March 2004, the veteran and his neighbor testified at a personal hearing over which the undersigned Veterans Law Judge presided at the RO, a transcript of which has been associated with the claims folder. This appeal has been before the Board twice before. In October 2004 and again in April 2007, the Board remanded the appeal for further development. Since there was substantial compliance with the instructions of the April 2007 Board decision with respect to the pes planus and TDIU issues, those issues are ready for further Board review. The issues of entitlement to an increased evaluation for plantar fasciitis of the right foot and entitlement to an increased evaluation for plantar fasciitis of the left foot are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The veteran's service-connected, bilateral pes planus is manifested by pronounced bilateral flatfoot, not improved by orthopedic appliances, with extreme tenderness of the plantar surfaces of the feet. 2. The veteran's service-connected pes planus is not manifested by marked pronation or marked inward displacement and severe spasm of the tendo Achilles on manipulation. 3. The veteran's service-connected foot disabilities preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 50 percent disability rating, and no higher, have been met for the veteran's service-connected bilateral pes planus disability. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.71a and Diagnostic Code 5276 (2008). 2. The criteria for a total rating for compensation purposes due to individual unemployability have been met. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and to assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). As discussed below, the Board is granting in full the benefits sought with respect to the pes planus and TDIU issues. As a result, even if any notice or assistance errors were committed, they necessarily have not prejudiced the veteran. Thus, compliance with those duties will not be discussed here. II. Increased rating for bilateral pes planus disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (38 C.F.R., Part 4), which represents the average impairment in earning capacity resulting from injuries incurred in military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Generally, an evaluation of the extent of impairment requires consideration of the whole recorded history (38 C.F.R. §§ 4.1, 4.2), but when, as here, service connection has been in effect for many years, the primary concern for the Board is the current level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Thus, staged ratings may be assigned if the severity of the disability changes during the relevant rating period. Here, the conflicting evidence in the record with respect to the veteran's pes planus disability does not reflect a worsening of the condition during the relevant rating period so much as it reflects differing interpretations of the veteran's various medical conditions. Thus, the increased rating, based on the doctrine of resolving reasonable doubt in favor of the veteran, should apply to the entire rating period, without using staged ratings. Evaluating this veteran's pes planus disability is complicated by the connection between it and the veteran's congenital neurological disorder of hereditary neuropathy with liability to pressure palsies (HNPP) that is not service-connected. When it is possible to separate the symptoms of more than one disability, such separation is appropriate; but when the symptoms of a service-connected disability cannot be differentiated from the symptoms of a nonservice-connected disability, the symptoms should be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The medical professionals to have addressed HNPP and pes planus symptoms have reached different conclusions. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). Dr. Atkinson has consistently pointed out that the veteran's pes planus disability is merely one manifestation of his HNPP and that the pain in his feet requires him to take daily narcotic medication, which makes him permanently and totally disabled. April 2000 Report by Dr. Atkinson; May 2000 Report by Dr. Atkinson. The VA examiner who conducted the November 2001 C&P Neurological Disorders Exam also stated that the veteran's severe pes planus is a manifestation of his HNPP and that he has chronic foot pain due to his pes planus. These opinions are consistent with the initial grant of service connection for pes planus because the RO determined that the veteran's preexisting flexible pes planus condition was aggravated by his military service. June 1975 Rating Decision. These physicians are competent to present their opinions and their conclusions are consistent with other evidence of record. The Board thus finds they are credible reports. While his primary care physician noted in April 2004 that the pain in his lower extremities was due to his HNPP, he was not asked to distinguish between pes planus and HNPP, so that opinion is not probative here. In October 2004, the Board sought a medical opinion as to which symptoms were attributable to pes planus and which to HNPP (and plantar fasciitis). The March 2005 C&P feet examiner conducted an examination and concluded that the veteran's symptoms were not due to pes planus at all, but were more suggestive of peripheral neuropathy. His opinion was that the veteran's flat feet have probably not changed through the years in appearance and the pain he was experiencing was from his neuropathy. That physician was competent to provide a medical opinion, but the Board finds that his report is not as probative as the opinions of Dr. Atkinson and the November 2001 C&P examiner. The March 2005 C&P examiner was explicitly asked: (1) to distinguish the veteran's pes planus symptoms from those of his co-existing hereditary neuropathy; (2) to describe his findings in detail; (3) to provide a complete rationale for all opinions and conclusions that included references to specific medical records on file; and (4) to address the veteran's employability due to his service- connected disabilities of his feet. None of those instructions was followed. Indeed, the report does not reflect the examiner's knowledge that the veteran has HNPP. He merely noted that the veteran had been diagnosed with "neuritis/neuropathy" but despite the purpose of the examination, he did not address the symptoms or condition of the veteran's HNPP, nor did he provide details of his exam, any rationale, references to other medical evidence, or an opinion of employability. The report is filled with conclusory findings with little or no rationale at all. Accordingly, the Board again requested a more detailed medical opinion as to which symptoms were manifestations of which disabilities. In November 2007, another C&P feet examination was conducted. That examiner provided a very detailed report about the veteran's symptoms but failed to address his HNPP at all. The record therefore shows that two examiners have determined that the veteran's pes planus is a manifestation of his HNPP so that the pain and disability he experiences in his feet are attributable to both conditions, whereas one examiner, whose report has been assigned less credibility, has determined that none of the veteran's foot symptoms are attributable to pes planus. Notwithstanding the Board's attempts to obtain a clear medical opinion that separates the symptoms of the service-connected and nonservice-connected disabilities, no such clear report has been produced. In the meantime, the veteran's claim has been pending for more than seven years. In the most recent C&P foot exam, that VA examiner ignored the veteran's HNPP and in an effort to evaluate pes planus (and plantar fasciitis) provided enough detail about the criteria used for rating pes planus that if it was not possible to separate the HNPP from the pes planus condition, the Board could nevertheless evaluate the veteran's pes planus condition based on that report. Given that credible medical opinions find the conditions to be overlapping and the only medical opinion to find no symptoms attributable to pes planus was found to be less credible, the Board will rate the veteran's pes planus condition based on the evidence of record relating to the pes planus condition as if it were not possible to separate the symptoms of the two conditions. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Turning to the schedular criteria for evaluating pes planus, the veteran's disability is currently rated at 30 percent disabling. The only higher schedular rating available for bilateral pes planus is a 50 percent rating. Diagnostic Code 5276 provides that a 50 percent disability rating is available when the bilateral pes planus disability is manifest by pronounced flatfoot with extreme tenderness of plantar surfaces of the feet, marked pronation, marked inward displacement and severe spasm of the tendo achillis on manipulation, and the disability is not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (criteria reordered in order to facilitate discussion of this veteran's condition). Three of those criteria are met on this record. The November 2007 VA C&P Foot Examiner found that the veteran has virtually complete flattening of the feet bilaterally with no arch remaining on either right or left foot. So, the first criteria of pronounced flatfoot are met. The veteran has also been found to have marked tenderness of the plantar surfaces of the feet bilaterally with only light palpation. November 2007 C&P Foot Exam; see also March 2005 C&P Feet Exam (veteran experiences aching on the plantar surfaces bilaterally); January 1999 C&P Feet Exam (marked tenderness to only moderate palpation). That finding is consistent with the veteran's longstanding complaints of pain on the bottoms of his feet. November 2007 C&P Feet Exam (pain is like stepping on golf tees); January 1999 C&P Feet Exam (veteran has pain in his feet 80 to 90 percent of the time). And the veteran has reported that rather than relieving his symptoms, the corrective shoes and inserts caused him more pain. Transcript at p. 4; April 2000 C&P Examination (veteran stopped wearing devices because they caused him additional pain); March 2005 C&P Foot Exam (veteran reported that wearing his orthotic shoes and inserts did not provide relief). Dr. Atkinson noted in his March 2004 report that the veteran's pes planus has proven to be uncorrectable. There is mixed evidence as to the degree to which the remaining criteria are manifest by the veteran's pes planus disability. As for marked pronation, the April 2000 X-ray report notes that there are no radiographic features of pes planus and there are no changes from X-rays of 1998 and 1999, which found the feet to be normal. The March 2005 X-ray report indicates that the veteran has minimal bilateral pes planus deformities. But the March 2005 C&P foot examiner interpreted those X-rays as revealing that the TN joint changes showed pronation bilaterally and minimal medial bulge. The April 2000 examiner diagnosed the veteran with third degree bilateral pes planus. Accord September 1998 C&P Feet Exam (veteran has severe pes planus, grade 3 is the assessment). Yet, at the November 2007 C&P feet exam, the examiner noted there was no unusual shoe wear or callous formations and no findings as to pronation were made. Given the lack of findings of pronation in some X-rays and reports, and the lack of any qualifier indicating what pronation existed was "marked" in the other X-rays and examination reports, the record does not establish that the veteran's pes planus is manifested by "marked" pronation. As for marked inward displacement and severe spasm of the tendo achillis on manipulation, only the November 2007 C&P examiner found that upon manipulation, there was a medial deviation of the Achilles tendon of five degrees on the left and 10 degrees on the right, which easily corrected at rest when there was no manipulation. November 2007 C&P Foot Exam. The other examination reports in the record are either silent as to changes in the Achilles tendon or find no changes. March 2005 C&P Feet Exam (no Achilles changes). On this record, "marked" inward displacement and "severe" spasm have not been established. As noted above, the veteran's pes planus disability does not manifest in all of the criteria for a 50 percent rating. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 30 percent rating is warranted where the bilateral disability is manifest by severe flatfoot, with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, DC 5276. This record does not establish all of the criteria for a 30 percent rating, for there is no indication of swelling on use or characteristic callosities. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this regard, Dr. Atkinson also noted that since the veteran has trouble feeling his feet, he falls down a lot and can't walk in the dark. March 2004 Report by Dr. Atkinson. And at the March 2005 C&P Feet Exam, the veteran reported that in addition to falling a lot, he found it difficult to walk on uneven surfaces. When there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Given the benefit-of-the-doubt doctrine, the fact that three of the criteria for a 50 percent rating are squarely met, and the other schedular criteria for a 50 percent rating are present-just not to a degree quite as severe as described,-the Board resolves reasonable doubt in favor of the veteran and grants an increased rating to the maximum schedular rating of 50 percent. A rating in excess of 50 percent is not warranted. The veteran's representative argues in the December 2006 post- remand brief that a higher rating is warranted because the veteran experiences limited function due to pain. A disability of the musculoskeletal system is primarily the inability, due to damage, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Thus, functional loss due to pain and weakness must be considered in evaluating the disability because a part which becomes painful on use must be regarded as seriously disabled. Id. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (disability ratings should reflect the veteran's functional loss due to fatigability, incoordination, endurance, weakness, and pain). And the rating should reflect the condition of the veteran during flare-ups. DeLuca v. Brown, supra. Here, the evidence establishes that the veteran's pain is near-constant, so an increased rating on the basis of flare- ups is not warranted. Nor does the record establish that the veteran's pain is the result of painful movement of a joint of the musculoskeletal system. The veteran testified at his personal hearing that he experiences pain when sitting, when standing, when walking, and when trying to sleep. Transcript at pp. 3-5. The November 2007 C&P examiner determined that the veteran had full range of dorsiflexion and plantar flexion. Moreover, even after repeating the test twice, there was no additional loss of motion and no pain on motion was noted. On the other hand, the November 2007 examiner did observe that while the veteran was capable of rising on his heels and toes, he was very unstable when rising on his heels and toes. See also April 2000 C&P Feet Exam (although normal stance and gait, the veteran is unable to repeat tandem walking and his heel-toe walking is very stiff); January 1999 C&P Feet Exam (the veteran has normal gait and station, but very poor balance when trying to walk on his heels and toes); September 1998 C&P Feet Exam (veteran walks with a wide-based steppage gait). Moreover, at the November 2007 C&P feet exam, he had difficulty in getting up from a squatting position. The veteran also reported that he had difficulty standing and walking and the examiner noted that he walked slowly and carefully. November 2007 C&P Feet Exam. But these manifestations of the disabilities of his feet do not warrant a disability rating higher than the 50 percent rating herein assigned. As noted above, the veteran's pes planus disability manifests only half of the symptoms set forth in the criteria for a 50 percent rating; yet, an increased rating was granted. The Board finds that since the manifestations of the veteran's pes planus disability fall somewhere in between a 30 percent and 50 percent rating, the functional loss manifest by some instability in heel-raising, toe-raising, and walking is adequately compensated by the 50 percent rating already assigned. Nor is an extra-schedular rating warranted. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008) (establishing a three-step analysis, the first of which is whether the schedular criteria is inadequate for evaluating the particular disability). But where, as here, the veteran is manifesting the very symptoms described in the rating criteria, the schedular rating is adequate for rating the disability. Thun, 22 Vet. App. at 115. As for any interference the veteran's pes planus disability has on employment, that aspect of his disability is adequately compensated by the grant of TDIU discussed in the next section of his decision. An increased rating for bilateral pes planus, to 50 percent, and no higher, is warranted on this record. III. A total rating for compensation purposes due to individual unemployability It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. In this case, while the veteran's three service-connected disabilities have a combined rating of less than 100 percent, the veteran contends that because he is unable to maintain substantially gainful employment due to his service-connected disabilities, he should be granted a total rating for compensation purposes due to individual unemployability (TDIU). The first step is to determine whether the veteran is eligible for TDIU. The eligibility requirements for TDIU depend upon the number and assigned ratings of service- connected disabilities. If a veteran has only one service- connected disability, and such disability is rated at 60 percent or more, the veteran is eligible for TDIU. 38 C.F.R. § 4.16(a). The veteran in this appeal is service-connected for bilateral pes planus, plantar fasciitis of the right foot, and plantar fasciitis of the left foot. The veteran's overall combined disability rating for his three service-connected disabilities is currently 60 percent (and the increased rating granted in section II, above, will increase that combined rating further). But the regulations provide that for purposes of determining eligibility for TDIU, disabilities of a common etiology are considered one disability. 38 C.F.R. § 4.16(a)(2). When service connection for plantar fasciitis was granted in March 1999, the veteran's plantar fasciitis disabilities were determined to be secondary to his bilateral pes planus disability. Since his disabilities are of a common etiology, this veteran is deemed to have one disability. As the combined rating for that disability is at least 60 percent, the veteran is eligible for TDIU. The next step is to determine whether the veteran is unemployable-that is, whether any service-connected impairment of mind or body is present that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Rather, the question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. §4.16(a) Here, there are many statements about the veteran's unemployability. Most of the medical professionals to have provided an opinion during the relevant rating period have determined that the veteran has been unemployable for some time. March 2004 Report by Dr. Atkinson (the veteran has had pes planus and neuropathy, making him completely unemployable from the leg problems and mental fogginess from his medications); May 2000 Report by Dr. Atkinson (the veteran has been permanently and totally disabled and is currently unemployable); May 2000 Follow-up to Neurological Consult (the veteran's genetically-determined neuropathy prohibits gainful employment); April 2000 Report by Dr. Atkinson (the veteran has been permanently and totally disabled and is currently unemployable); May 1999 Hospital Discharge Summary (the veteran's genetically-determined neuropathy is currently debilitating and prohibits gainful employment); but see April 2000 C&P Feet Exam (veteran is capable of working six hours out of an eight-hour workday with appropriate breaks and rests); January 1998 C&P Feet Exam (same). The Social Security Administration (SSA) determined that the veteran has been under a disability since December 31, 1987 (albeit not based on pes planus or plantar fasciitis). See also October 2000 Report by Vocational Consultant (the veteran would be unable to work in competitive employment at any level because he would be required to have an unreasonable number and length of rest periods or breaks in the workplace). On the other hand, the April 2000 C&P foot examiner found that with appropriate rest periods, the veteran would be able to sit, stand, or walk for six hours out of an eight-hour workday. See also January 1998 C&P Feet Exam (same). But in a May 2000 report, Dr. Atkinson stated that that VA C&P examination report is incorrect because it is based on the erroneous assumption that the veteran's condition was improving. Dr. Atkinson noted that the veteran's condition has not gotten better and would not be getting better. May 2000 Report by Dr. Atkinson. The veteran's medical treatment records since that date do not show that the veteran's condition is improving. To the contrary, for a short period during the rating period, the veteran's narcotic pain medication appeared to be aggravating his mental disorders, making him increasingly angry and threatening. See April 26, 2004, Administrative Note (voice mail message from veteran is angry and used foul language throughout); May 20, 2004, Administrative Note (threatening voice mail warranted police involvement); May 26, 2004, Controlled Substance Renewal (voice mail threatening to take ambulance to VA and charge the cost to VA unless medication was mailed immediately); May 28, 2004, Addendum to Controlled Substance Renewal (veteran left threatening voicemail after only a partial renewal of morphine was sent to him); June 2004 Administrative Note (police involvement after more threatening voice mails received at VA). Finally, the veteran's testimony on this issue does not support his claim. He testified at his personal hearing that more than one employer was willing to consider him for employment so long as he provided a physician's letter that he was able to work despite his morphine medication. The veteran explained that he had not sought that clearance from any of his doctors because he didn't think there was a doctor around that would sign that kind of a letter. Transcript at p. 6. But since the veteran's treating physicians have provided opinions that he is unemployable, that testimony is not prejudicial to the veteran's claim. Given the fact that the April 2000 C&P examiner's opinion is so very different from the opinions of the other examiners and is not consistent with the later evidence, the Board finds that it is not as probative as the other opinions. As a result, the Board finds that the veteran is unemployable. But just as in Section II, above, the record does not contain an opinion on unemployability that explicitly addresses the separate effects on unemployability of the veteran's service- connected disabilities from his nonservice-connected HNPP. And in considering TDIU, the veteran's nonservice-connected disability is not to be taken into account. 38 C.F.R. § 4.16 (the existence or degree of nonservice-connected disabilities will be disregarded where the percentages of disability for service-connected disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable). In this regard, two of the medical opinions in the record connect the pain from the veteran's service-connected pes planus disability to the narcotic pain killers that contribute to the veteran's unemployability. In his March 2004 report, Dr. Atkinson stated that he had reviewed the veteran's extensive VA files, including the exchanges between the veteran and VA. He explained that the veteran had HNPP before he entered service and due to the rigors of training and being a soldier, the veteran developed pes planus and thus damaged the nerves in his legs. Dr. Atkinson had diagnosed the veteran with pes planus and a painful neuropathy in both legs. According to Dr. Atkinson, because of those conditions, the veteran was unable to stand for any length of time and was required to take morphine daily. He stated that due to his leg problems and mental fogginess from the morphine, he was completely unemployable. Although Dr. Atkinson did not attempt to separate the effects of the pes planus and nonservice-connected HNPP, his report makes clear that in his opinion, the veteran was taking morphine at least in part because of his pes planus symptoms and that the effects of that morphine, as well as his pain, made the veteran unemployable. A similar connection was made by the November 2001 C&P neurological disorders examiner. That VA examiner pointed out that the veteran had had HNPP all of his life. He explained that pes planus can be associated with HNPP. He noted that the veteran's pes planus was very symptomatic during service, which made him believe that the pes planus was a very active symptom of his HNPP while he was in service. Based on his November 2001 examination, the C&P examiner found that the veteran had chronic foot pain due to his pes planus and that he was taking morphine on a chronic basis for that pain. Since this evidence shows that the veteran is taking morphine because of his service-connected pes planus disability and that the chronic morphine causes mental fogginess and affects his ability to function, the Board concludes that even without regard to the veteran's nonservice-connected disabilities, during the relevant period since the veteran filed his TDIU claim, his service-connected disabilities made it impossible for him to follow a substantially gainful occupation. Thus, a total rating for compensation purposes due to individual unemployability is warranted on this record. ORDER An increased rating for bilateral pes planus, to 50 percent, and no higher, is granted. A total rating based on individual unemployability due to the veteran's service-connected disability is granted. REMAND The veteran's representative asks in the September 2008 post- remand brief that the appeal be remanded because the November 2007 C&P feet examination is not detailed enough to rate the veteran's disabilities. As discussed above, the Board has found that the evidence of record was sufficient with respect to the veteran's claims for an increased rating for his pes planus disability and for TDIU to be able to decide those issues on appeal. But with respect to the veteran's plantar fasciitis disabilities, the November 2007 C&P examination does not contain the kind of medical information that is needed to evaluate those disabilities. VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). The veteran's plantar fasciitis disabilities are currently rated as 20 percent disabling. For a higher 30 percent rating, the disabilities must be manifest by complete paralysis of the posterior tibial nerve, with paralysis of all muscles of the sole of the foot, frequently with painful paralysis of a causalgic nature; toes that cannot be flexed; weakened adduction; and impaired plantar flexion. The November 2007 C&P feet examination focused mostly on the veteran's pes planus disability, but made few findings based on the criteria for rating plantar fasciitis. For example, the examiner did not address the posterior tibial nerve at all. And while the C&P report pointed out that the veteran could stand on his toes with difficulty, which apparently shows that his toes could be flexed, he provided no explanation as to whether the difficulty the veteran experienced in doing that was due to limited flexion of his toes. Similarly, while he noted range of motion of the ankle joint, he did not make any findings concerning the muscles of the veteran's feet. This is especially relevant since the veteran has long complained of severe cramps in the bottoms of his feet on a nightly basis and the veteran has a past history of paralysis. The examiner did not address causalgic pain at all, even though the March 2005 C&P feet examiner noted that the veteran had burning pain from his feet to his legs. No findings with respect to adduction were made. Thus, there is insufficient evidence in the record to evaluate the veteran's plantar fasciitis and a remand for the purpose of evaluating the severity of the veteran's current plantar fasciitis disabilities is necessary. In addition, in the Board's October 2004 Remand, as well as in the Board's April 2007 Remand, the Board emphasized the need to have the symptoms of the veteran's HNPP distinguished from his service-connected disabilities. As discussed in the decision portion of this document, the Board determined herein that there was sufficient evidence concerning pes planus and its relationship to the veteran's nonservice- connected HNPP condition in the record that notwithstanding the lack of that discussion in the November 2007 C&P feet examination, a decision on the other two issues on appeal was nevertheless possible. But there is much less evidence in the record concerning the veteran's plantar fasciitis disabilities. Thus, another VA examination should be schedule to determine the disability attributed to the service-connected plantar fasciitis. The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. Since the last notice was sent to the veteran concerning the evidence needed to substantiate his claims for increased ratings, further guidance has been issued concerning the content of such notice. See Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (discussing the notice required in an increased rating claim); VBA Fast Letter 08-16 (June 2, 2008) (curing notice in an increased rating claim). Here, the notice letters sent in July 2002, November 2004, and November 2007 substantially comply with most of the notice requirements. But in those letters, the veteran has not been notified that one of the criteria used in rating his plantar fasciitis disabilities is the impact they have on his daily life. As a result, the RO/AMC should send a notice letter that includes that information. Finally, since the most recent medical treatment records are dated from June 2004, more than four years ago, and the record shows that the veteran frequently seeks medical treatment for the symptoms of his HNPP with VA medical professionals as well as his private internist, the RO/AMC should make arrangements to obtain the veteran's medical treatment records dated since June 2004 and associate them with the veteran's claims folder before his C&P examination is scheduled. Accordingly, the case is REMANDED for the following action: 1. Send the veteran notice of what evidence is needed to substantiate his increased rating claims that includes notice that one of the criteria used in rating his disability is the impact the plantar fasciitis disabilities have on his daily life. 2. Make arrangements to obtain the veteran's medical treatment records concerning plantar fasciitis dated since June 2004 and associate the evidence obtained with the veteran's claims folder. 3. After the above development is completed, make arrangements for the veteran to have appropriate examination(s) to determine the current severity of his plantar fasciitis disabilities and to address which symptoms of the veteran's feet are manifestations of his service- connected plantar fasciitis disabilities as opposed to his nonservice-connected hereditary neuropathy with liability to pressure palsies (HNPP) and his service- connected bilateral pes planus. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner(s) in conjunction with the examination report. Any indicated studies should be performed. For each foot, the examination report(s) must address the following matters and must provide complete rationale for all opinions: Does the veteran have neurological impairment associated with the service- connected plantar fasciitis of the left and/or right foot? If so, the examiner should address the questions below. (a) To what extent, if any, is the veteran's posterior tibial nerve paralyzed? (b) To what extent, if any, are the muscles of the sole of each of the veteran's feet paralyzed? In responding, the examiner should address both: (i) the extent to which any such paralysis is of a causalgic nature; and (ii) whether the veteran's long- standing complaints of severe cramping of his feet on a nightly basis are a manifestation of foot paralysis. (c) To what extent, if any, can the veteran's toes be flexed? In responding, the examiner should address whether the difficulty the veteran has had in the past while standing on his toes is a manifestation of impaired ability to flex his toes. See C&P Feet Examinations of November 2007 and January 1990. (d) To what extent, if any, does the veteran manifest weakened adduction of the feet? (e) To what extent, if any, does the veteran manifest impaired plantar flexion? Describe which of the veteran's symptoms of his feet are manifestations of his service-connected plantar fasciitis disabilities and which are manifestations of another condition of his feet- including, his nonservice-connected HNPP disorder and/or his service-connected pes planus disability? If it is not possible to identify which symptoms are manifestations of which disorders, the examiner should explain why it is not possible to make those distinctions. 4. Thereafter, readjudicate the claim. If any sought benefit is denied, issue the veteran and his representative a supplemental statement of the case. After they have been given an opportunity to respond, the claims file should be returned to this Board for further appellate review. 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 action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs