Citation Nr: 1329045 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-00 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for residual fracture of the fifth metatarsal, left foot, currently evaluated as zero percent disabling. 2. Entitlement to an increased rating for degenerative arthritis, right big toe, currently evaluated as zero percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to August 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of entitlement to service connection for plantar fasciitis as secondary to service-connected degenerative arthritis of the right big toe and/or service-connected residual fracture of the fifth metatarsal, left foot, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See VA Form 9, December 2010. Therefore, the Board does not have jurisdiction of the issue, and it is referred to the AOJ for appropriate action. The issues of entitlement to an increased rating for residual fracture of the fifth metatarsal, left foot and entitlement to an increased rating for degenerative arthritis of the right big toe, each currently evaluated as zero percent disabling, are 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 contends that his service-connected foot disabilities are more severe than as contemplated by their noncompensable ratings. He additionally asserts that his current pain and other symptoms are caused by his service-connected disabilities in combination with his nonservice-connected diagnosed plantar fasciitis. Because of this, he asserts he is entitled to an increased rating for his degenerative arthritis of his right big toe and residual fracture of the fifth metatarsal of his left foot, each currently evaluated as zero percent disabling. A remand is necessary to obtain any outstanding VA treatment records. In his December 2010 formal appeal to the Board, the Veteran stated that after he left active service, he "went to the VA in Chicago and complained about feet, knee and back problems." The claims file is absent of any VA treatment records from the Chicago VA. Because it appears there may be outstanding VA medical records that may contain information pertinent to his claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). A remand is additionally necessary so that an addendum opinion may be obtained, addressing the likelihood that the Veteran's diagnosed and nonservice-connected plantar fasciitis is related to his service connected disabilities. In the September 2010 VA examination, the examiner's opinion considered the likelihood of a causal relationship between the Veteran's plantar fasciitis and a service-connected fracture to the third metatarsal of the left foot; however, the Veteran is service-connected for a fracture to the fifth metatarsal of the left foot. Thus, an addendum is necessary to ensure the proper opinion has been obtained in consideration of the Veteran's specific service-connected disabilities. On remand, an appropriate physician should also provide an addendum opinion as to the extent that the Veteran's pain and symptoms can be attributed specifically to his service-connected disabilities. The December 2010 examiner noted the existence of objective evidence of weakness in the Veteran's great toe and first digit of his left foot, and of objective evidence of weakness in the great toe of his right foot, as well as evidence of painful motion, instability, and weakness in his feet. Though the examiner provided a diagnosis of bilateral plantar fasciitis and subsequently described its effects on the Veteran's daily activities, he failed to similarly describe what effect the Veteran's service-connected disabilities have on his daily activities or if they result in any functional loss. Thus, it is unclear as to whether any increase in the Veteran's foot pain and weakness is due to the nonservice-connected plantar fasciitis, and, if so, whether the symptoms attributable to the plantar fasciitis can be disassociated from the service-connected disabilities. Significantly, when it is not possible to separate the effects of service-connected and nonservice-connected disabilities, such effects should be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In light of the foregoing, on remand, a determination should be made as to whether it is possible to separate the symptoms associated with the Veteran's nonservice-connected plantar fasciitis from the symptoms associated with his service-connected foot disabilities. Finally, the RO must additionally consider new evidence that has been timely submitted during the appeal period. See 38 C.F.R. § 3.156(b) (2012). Specifically, the Veteran has submitted lay testimony and VA treatment records in support of his claim. In his December 2010 formal appeal to the Board, the Veteran submitted new evidence not previously considered by the RO. Specifically, he provided a portion of an article noting that "wearing shoes with inadequate support and prolonged walking can cause plantar fasciitis." He additionally included statements describing his participation in "unusually long marches and [having] improper support for his feet," and being diagnosed with "stress fractures in both of [his] arches, both of [his] feet" during service. The Veteran also submitted VA treatment records from January 2011 to May 2013 to the claims file, including a February 2013 record showing that the treating podiatrist ordered boots for the Veteran due to the painful arthritis in his right great toe. Thus, on remand, the RO should review the newly added evidence and readjudicate the issues to determine whether the Veteran is entitled to an increased rating for his service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After completing the above development, the Veteran's claims file should be forwarded to an appropriate physician to review the claims file and to provide an addendum opinion. The examiner must annotate in his or her opinion whether the claims file was reviewed. While review of the entire file is required, attention is invited to the following particular records: (a) The Veteran's December 2010 statement accompanying his VA Form 9, describing his participation in "long marches and [having] improper support for his feet" with "no arch supports in the boots" in service, and additionally stating that x-rays showed that he had "stress fractures in both of [his] arches, both of [his] feet" in service, and that he has been prescribed shoes, inserts, and therapy for his feet for many years. (b) A February 2013 VA treatment record noting that the Veteran was assessed as having painful arthritis of the first metatarsophalangeal joint of his right foot and being prescribed boots for the arthritis. Based on a review of the record, the examiner should determine the following: (a) Whether the Veteran's currently diagnosed plantar fasciitis is proximately due to or the result of the Veteran's service-connected residual fracture of the fifth metatarsal of the left foot. (b) Whether the Veteran's currently diagnosed plantar fasciitis is proximately due to or the result of the Veteran's service-connected degenerative arthritis of the right big toe. In addition, the examiner should provide an opinion as to the symptoms and functional loss attributable to the Veteran's service-connected residual fracture of the fifth metatarsal of the left foot, those attributable to the service-connected degenerative arthritis of the right big toe, and those attributable to the non-service-connected plantar fasciitis. 3. After ensuring that the requested actions are completed, readjudicate the claims on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The record should then be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).