Citation Nr: 1308239 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-36 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain. 2. Entitlement to service connection for bilateral plantar fasciitis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to February 2004. He is the recipient of the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2008 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The September 2008 rating decision granted service connection for right knee arthralgia and assigned an initial noncompensable rating, effective March 27, 2008. The Veteran then appealed with respect to the initially assigned rating. While his appeal was pending, a June 2010 statement of the case assigned a 10 percent evaluation, effective March 27, 2008. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that a July 2005 rating decision denied service connection for a bilateral foot disorder identified by the Veteran as fatigue. The disability of plantar fasciitis was not considered in that decision. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996) that a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same claim when it has not been previously considered. See Boggs v. Peake, 520 F3d. 1330 (2008). Accordingly, the Board determines that the issue of entitlement to service connection for bilateral plantar fasciitis is properly characterized as an original claim for service connection. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board's review of the record indicates that a remand is necessary so that the Veteran may be afforded additional VA examinations. Additionally, while the appeal is in remand status, up-to-date VA treatment records should be added to the claims folder. With respect to VA treatment records, the claims file reflects that the Veteran receives treatment at the VA Medical Center (VAMC) in Hampton. The most recent VA treatment record is dated in July 2009. Therefore, all VA treatment records dated from July 2009 forward from the Hampton VAMC, including all outpatient clinics, should be added to the file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). As for the VA examination for the service-connected right knee disability, the Board determines that the examinations of record, most recently in May 2010, while providing evidence relevant to the rating criteria, do not address all symptoms which are to be considered for rating purpose for the knee joint. Particularly, the Board notes the Veteran had subjective reports of giving way, instability, pain, stiffness, and weakness. However, the clinical examination did not address these complaints. Testing of ligament stability was not accomplished, for example. Moreover, while the examiner commented that the Veteran was able to flex his right knee to 140 degrees with pain, the examiner did not indicate at what point during motion the pain began. Thus, the Board finds that the Veteran should be afforded another VA examination to assess the current nature and severity of his service-connected right knee disability. With regard to the bilateral pes planus, the Veteran was not afforded a VA examination for this claim. VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record demonstrates that the Veteran has a current diagnosis of bilateral plantar fasciitis. Further, he has provided personal statements indicating that he first injured his feet while walking in a convoy that came under attack and that he has had problems with his feet since that time. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Moreover, the Veteran is competent to describe symptoms he experiences in his feet. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Consequently, there is evidence of in-service injury, a current diagnosis, and a connection between the two to warrant a VA examination with respect to that claim. Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records from the Veteran from the Hampton VAMC and all outpatient clinics dated from July 2009 forward. All requests and responses, positive and negative, must be documented in the claims file. 2. Schedule the Veteran for the appropriate VA examination to assess the current nature and severity of his service-connected right knee disability. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted, including, but not necessarily limited to, range of motion, ligament, and meniscus testing. The examiner must document any subjective complaints of symptoms and correlate those symptoms clinically, if possible. If the Veteran has subjective symptoms that are not supported by the clinical findings, the examiner should so state and explain why that is the case. The examiner must comment on any additional loss of function that occurs with repetition due to the effects of pain, weakness, fatigue, lack of endurance, and incoordination. If range of motion is further limited upon repetition due to pain, the examiner must indicate the point at which the pain occurs, as well as the maximum motion attained. A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 3. Schedule the Veteran for the appropriate VA examination to assess the etiology of his claimed bilateral plantar fasciitis. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not that Veteran's currently diagnosed bilateral plantar fasciitis is causally or etiologically a result of the symptoms he describes having in and since service as opposed to its being more likely the result of some other cause or factors? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. The examiner must not only document the Veteran's subjective complaints of foot pain during and since service, but he or she must consider and discuss those complaints in the opinion. The examiner is advised that the Veteran is competent to describe symptoms he can readily perceive, such as foot pain, and his description of symptoms and injuries that occurred during combat are deemed credible. If the examiner finds the Veteran's claims inconsistent or implausible when viewed in the context of the complaints, treatment, and diagnoses documented in and after service, the examiner must explain the reasons for that finding. If an opinion cannot be formed without resorting to mere speculation, the examiner should so state and provide a reason for such conclusion. 4. After completing the above actions, the Agency of Original Jurisdiction (AOJ) should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claim should be readjudicated. If any benefit sought is not resolved to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and/or argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. 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). _________________________________________________ G. A. Wasik Acting 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).