Citation Nr: 1301650 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-14 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. For the period prior to January 28, 2008, entitlement to a compensable initial disability rating for allergic rhinitis with sinusitis. 3. For the period beginning on January 28, 2008, entitlement to an initial disability rating in excess of 10 percent for allergic rhinitis with sinusitis. 4. Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative arthritis. 5. Entitlement to an additional compensable disability rating for radiculopathy of the bilateral upper extremities, as secondary to cervical spine degenerative arthritis. REPRESENTATION Appellant represented by: State of Vermont Office of Veterans Affairs ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1987 to May 1994, January 2005 to June 2006, and May 2008 to February 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Cleveland, Ohio. Jurisdiction was subsequently transferred to the RO located in White River Junction, Vermont. An October 2008 rating decision granted a higher initial rating of 10 percent for the Veteran's allergic rhinitis with sinusitis, effective January 28, 2008. As this did not constitute a grant of the full benefit sought on appeal, the Veteran's claim remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993) On his February 2010 Form 9 appeal, the Veteran requested a Travel Board hearing. The day of the May 2010 Board hearing, the Veteran, by way of his representative, submitted a withdrawal of his Board hearing request in writing. Based thereon, the Veteran's request for a Board hearing is considered withdrawn. In September 2011, the Board remanded the Veteran's claims for further development. Such development has been completed to the extent possible and evidence of that action has been associated with the claims file; these matters are returned to the Board for further review. 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 Veteran claims entitlement to service connection for bilateral plantar fasciitis. He has also filed claims for higher initial ratings for his service-connected allergic rhinitis with sinusitis and cervical spine degenerative arthritis (which claim has been recharacterized by the Board to include the issue of entitlement to an additional, separate rating for radiculopathy of the bilateral upper extremities). In September 2011, the Board remanded the Veteran's claims for further development, to include so that the Veteran could be provided with VCAA notices for all of his claims, to ensure that all treatment records identified by the Veteran had been associated with the claims file, and so that the Veteran could be afforded VA examinations relating to all of his claims. Subsequently, in September 2011, the Veteran notified the RO that his addresse had changed to [redacted]. The Board notes by way of background that the Veteran's prior address of record was [redacted]. In November 2011, the RO sent a VCAA notice and request for identification of outstanding treatment records to the Veteran's current address in Enosburg, Vermont. No reply, however, was received. In January 2012, the RO sent a notice to the Veteran at his current address in Enosburg, Vermont regarding the VA examinations that were to be scheduled relating to his claims before the Board. Later, in January 2012, the RO canceled all of the VA examination requests relating to the Veteran's claims because the Veteran notified the RO (via telephone) that he was presently in Indiana and having difficulty returning to Vermont due to transportation issues. The Veteran was asked to please contact the RO when he returned to Vermont and was available for VA examination appointments. A January 2012 notation in the claims file reflects that while the Veteran's VBA address was on [redacted], his VHA address was on [redacted]. A February 2012 notation in the claims file reflects that the Veteran's representative notified the RO that the Veteran still had not returned from Indiana and that it was indicated that the Veteran may be homeless. The RO noted that the Veteran's VA examinations would be scheduled in Indiana. Subsequently, the RO sent a February 2012 notice to the Veteran at the [redacted] on file with VHA that VA examinations were being scheduled. A later February 2012 notice to the Veteran at the Indianapolis address notified him that VA examinations were scheduled in March 2012 at the VA medical center located in Indianapolis. The Veteran failed to report. In October 2012, a Supplemental Statement of the Case (SSOC) was issued, and these matters were returned to the Board. In November 2012, the Veteran's representative notified the AMC that the Veteran's most recent address of record with the representative was the [redacted], and requested that another attempt be made to schedule the Veteran for VA examinations using that address. The Board acknowledges that the RO has made considerable efforts at locating the Veteran and to comply with the Board's September 2011 remand directives. At the same time, however, the Board acknowledges notations in the claims file that the Veteran was having transportation difficulties and may have been experiencing homelessness. Based thereon, and in light of the representative's most recent November 2012 correspondence, the Board will remand these matters once more so that the Veteran may be provided with one more opportunity for VA examinations relating to his claims. In addition, the Board acknowledges that the RO sent VCAA notices to the Indianapolis, Indiana address in September 2011 and later to the Veteran's Enosburg, Vermont address in November 2011. Nevertheless, in light of the recent November 2012 correspondence from the Veteran's representative, the Board finds that a copy of the November 2011 VCAA notice regarding all of the Veteran's service connection and rating claims should be mailed to the Essex Junction, Vermont address. The Veteran should also be provided with another opportunity to identify any outstanding private or VA treatment records dated since December 2009 relating to his claims. Accordingly, the case is REMANDED for the following action: 1. Send a notice compliant with the VCAA relating to the Veteran's claims for service connection for plantar fasciitis and for higher ratings for his service-connected allergic rhinitis with sinusitis and cervical spine disability (and any neurological symptoms) to the [redacted] address. The Veteran should also be provided with another opportunity to identify any outstanding private or VA treatment records dated since December 2009 relating to his plantar fasciitis, allergic rhinitis with sinusitis, and cervical spine disability claims. To that end, provide the Veteran with Forms 21-4142 authorizations. All records identified should be associated with the claims file. If any of these records are found to be unavailable, please note such in the file. 2. After the above development has been completed, work directly with the Veteran's representative to schedule the Veteran for a VA examination with an appropriate physician to determine the current nature and the etiology of any plantar fasciitis. Please send notice of the VA examination to the Veteran's two last known addresses in Vermont, specifically: a) [redacted], and b) [redacted]. The examiner should indicate whether it is at least as likely as not (meaning likelihood of at least 50%) that any current plantar fasciitis disability a) had its onset in service or is otherwise related to service, or b) is secondary to any service-connected disability, to include his right and left knee disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the Veteran is found to have plantar fasciitis that is not related to service or any service-connected disability, please explain the rationale for such opinion. As to any opinions expressed, it would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. Work directly with the Veteran's representative to schedule the Veteran for a VA examination with an appropriate physician to determine the current severity of his allergic rhinitis with sinusitis. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided. Please send notice of the VA examination to the Veteran's two last known addresses in Vermont, specifically: a) [redacted], and b) [redacted]. Please ask the examiner to also address the effect of the Veteran's allergic rhinitis with sinusitis on his activities of daily living and occupational functioning. Please ask the examiner to address the Veteran's history of headaches and the relationship, if any, to the Veteran's allergic rhinitis with sinusitis. In that regard, please note that the Veteran is separately service-connected for post-traumatic headaches, claimed as traumatic brain injury. See Rating Decision, October 2008. 4. Work directly with the Veteran's representative to schedule the Veteran for a VA examination with an appropriate physician to determine the current current severity of his cervical spine degenerative arthritis. The claims folder must be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided. Please send notice of the VA examination to the Veteran's two last known addresses in Vermont, specifically: a) [redacted], and b) [redacted], Vermont. The examiner should note the Veteran's ranges of motion for his cervical spine. The examiner should also comment on whether the Veteran's cervical spine disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to his service-connected disability. If feasible, the examiner should note the degrees of additional limitation of motion due to these symptoms. The examiner should also note whether pain significantly limits functional ability during flare-ups or with repetitive use, and if so, the examiner should specify the degrees of additional limitation of motion due to pain on use or during flare-ups. The examiner should also specifically address whether the Veteran's cervical spine disability is manifested by a) ankylosis, favorable or unfavorable, or b) incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. The examiner should also address whether the Veteran experiences any neurological abnormalities (including, but not limited to, upper extremity radiculopathy, or bowel or bladder impairment) as a result of his cervical spine disability. If any upper extremity radiculopathy or other neurological condition secondary to the Veteran's cervical spine disability is found, the nerve group(s) affected should be specifically noted. The examiner should review, among other things, the June 2008 nerve conduction study report and the Medical Board report dated around July 2009. The examiner should also address the affect of the Veteran's cervical spine and any related neurological disability on his activities of daily living and occupational functioning. 5. The Veteran is to be advised that it is his responsibility to report for any scheduled VA examinations 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 claims. See 38 C.F.R. § 3.655 (2012). 6. Then, readjudicate the Veteran's claims. If any of the claims remains denied, the Veteran and his represenatabive should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claims should be returned to the Board for further 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. 2012). _________________________________________________ MICHAEL A. PAPPAS 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) (2012).