Citation Nr: 1338265 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 12-15 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis. 2. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Luke McCabe, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2008. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, granted the Veteran's claims of entitlement to service connection for bilateral plantar fasciitis and hypertension. The RO assigned his bilateral plantar fasciitis an initial rating of 10 percent and assigned his hypertension an initial 0 percent (i.e., noncompensable) rating, both retroactively effective from April 15, 2010, the date of receipt of these claims. In response, he appealed for higher initial ratings for these disabilities. See Fenderson v. West, 12 Vet. App. 119 (1999). His claims require further development before being decided on appeal, so the Board is remanding them to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Additional development is necessary to fully and fairly adjudicate these claims. There are no VA treatment records in the claims file, only the reports of January 2011 VA compensation examinations. The January 2011 examiner mentioned a review of notes from the Veteran's treating physician at the VA Medical Center (VAMC) in El Paso, Texas. Further, the examiner referred to VA primary care treatment records relating to the Veteran's hypertension, as well as podiatric records reflecting treatment for his bilateral plantar fasciitis. Additionally, in his May 2012 substantive appeal (on VA Form 9), the Veteran mentioned receiving VA treatment for his plantar fasciitis and hypertension. However, since, as mentioned, no post-service treatment records are currently in the claims file, or even in the Veteran's electronic ("Virtual VA") file, there appear to be outstanding records relevant to his claims that need obtaining before deciding his appeal. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. §§ 3.159(c)(2). See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA has constructive, if not actual, notice of these additional records because they are generated and maintained within VA's healthcare system and, therefore, deemed to be in VA's possession, even if not physically in the file). Additionally, new VA compensation examinations for the Veteran's hypertension and bilateral plantar fasciitis are needed reassessing the severity of these disabilities. As already alluded to, he last underwent VA compensation examinations for these disabilities in January 2011, so nearly three years ago. Also, there is suggestion in the examination report that his hypertension had been progressively worsening since his service. Moreover, in his April 2011 notice of disagreement (NOD), he suggested that the treatment of his bilateral plantar fasciitis with insoles resulted in increased functional impairment. Thus, in light of the amount of time since his last examination for these disabilities and the possible increase in their severity since, reexamination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability . . . the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (1995). Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Request that the Veteran provide the names and addresses of all health care providers that have treated his bilateral plantar fasciitis and hypertension. After acquiring this information and obtaining any necessary authorization (VA Form 21-4142), obtain and associate all outstanding pertinent records with the claims file or Virtual VA electronic folder (e-folder). A specific request should be made for all treatment records from the VAMC in El Paso, Texas, as well as for all podiatric treatment records. If any of the records identified, such as those specified above, are in the custody of a Federal department or agency like VA, the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(2), whereas subpart (c)(1) controls if they are not. So make as many attempts to obtain identified records as are required of this VA regulation, depending on who has custody of the records. Also appropriately notify the Veteran if unable to obtain identified records, as required by 38 C.F.R. § 3.159(e)(1). 2. Upon receipt of all additional records, schedule the Veteran for VA compensation examinations to reassess the severity of his bilateral plantar fasciitis and hypertension. a. With regards to his bilateral plantar fasciitis, all necessary diagnostic testing and evaluation needed to reassess the functional impact of this disability must be performed. To this end, the examiner must identify all associated symptoms, including indicate whether there is objective evidence of pain and attempt to assess the extent of any pain, including insofar as its effect on the functioning of the Veteran's feet. Medical comment also is needed concerning whether there is any incoordination, weakened movement and premature or excess fatigability on use, including during prolonged repeated use of the feet or during "flare ups," meaning when the Veteran's symptoms are most problematic. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history of this disability. b. With regards to the Veteran's hypertension, all necessary clinical and diagnostic testing and evaluation needed to reassess the severity of this disability must be performed. This includes taking the necessary amount of blood pressure readings and considering those to date so as to allow VA adjudicators to address the relevant rating criteria of 38 C.F.R. § 4.104, Diagnostic Code 7101. Therefore, the claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the history of this disability, including to as mentioned consider prior blood pressure readings in years past. 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. By this remand, the Board intimates no opinion as to any final outcome warranted concerning these claims. No action is required of the Veteran until he is notified by VA. He has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2013). ____________________________________________ KEITH W. ALLEN 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) (2013).