Citation Nr: 0811458 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 02-11 003A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for plantar fasciitis of the right foot, for the period of October 7, 1994 to February 1, 2005. 2. Entitlement to an evaluation in excess of 20 percent for plantar fasciitis of the right foot, for the period since February 2, 2005. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The veteran served on active duty from May 1981 to June 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Regional Office (RO), wherein the RO effectuated a November 2001 decision by the Board that granted service connection for a right foot disability. A 10 percent evaluation was assigned for plantar fasciitis of the right foot, effective October 7, 1994. This initial evaluation was appealed to the Board. By an October 2005 rating action, the RO granted a 20 percent evaluation for plantar fasciitis of the right foot, effective February 2, 2005. In a March 2006 decision, the Board denied the appellant's claims. He appealed to the Court of Appeals for Veterans Claims (Court). In a January 2008 Joint Motion for Remand to the Court, the parties (appellant and Secretary of VA) requested that the Board decision be vacated and the issues remanded. In a Court order issued later that month, the Joint Motion was granted, the Board's March 2006 decision was vacated, and the issues were remanded. The case was subsequently returned to the Board. 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 The Joint Motion for Remand indicated that the November 2003 examination was inadequate because the examiner apparently "misunderstood the purpose of the examination" as reflected by his questioning the existence of plantar fasciitis and whether such was service connected. Moreover, the Joint Motion noted that the examiner's "incredulity regarding Appellant's veracity" due to veteran's reported drug abuse called into question whether the physician took into account the veteran's complaints. In accordance with the Joint Motion for Remand, the Board will remand the case for a new examination to be conducted by an examiner other than the one who conducted the November 2003 examination. The last VA treatment records in the file are dated in August 2003. Thus, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). During the pendency of this appeal, the Court issued a decision in the appeal of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), finding that, at a minimum, adequate VCAA notice on a claim for increase requires that VA notify the claimant that, to substantiate such a claim the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and that provides examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Corrective notice can be provided on remand. Additionally, he was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Thus, on remand the RO/AMC should provide corrective notice in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) as well. Accordingly, the case is REMANDED for the following action: 1. Send the veteran and his representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information and evidence needed to establish a disability rating and an effective date for the disability on appeal, as outlined by the Court in Dingess/Hartman. The notice should also notify the veteran that, to substantiate the claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. The notice must also provide examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. 2. Obtain and associate with the claims file any pertinent VA treatment records dating since August 2003 from the Baltimore VA Medical Center and associated clinics dating since August 2003. 3. The veteran should then be afforded a VA foot examination, by a different examiner than the one who conducted the November 2003 examintion, to determine the nature and extent of his service connected plantar fasciitis of the right foot. The examination report should include a detailed account of all symptomatology found to be present. The examiner should also be asked to evaluate any functional loss due to pain or weakness from the plantar fasciitis, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. The claims folder should be made available to and reviewed by the examiner in conjunction with the examination. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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. 2007). _________________________________________________ K. A. BANFIELD 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) (2007).