Citation Nr: 1342859 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 12-10 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to an increased initial rating for mild facet osteoarthritis, currently rated as noncompensable. ATTORNEY FOR THE BOARD K. Archer, Associate Counsel INTRODUCTION The Veteran had active service in the Air Force Reserves from February 2002 to June 2002, August 1, 2006 to September 30, 2006, and February 2009 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the Veteran's claim for entitlement to service connection for plantar fasciitis and granted service connection for mild facet osteoarthritis and assigned a 0 percent rating, effective October 1, 2006. The file was subsequently transferred to the RO in St. Petersburg, Florida. The Board has reviewed all evidence of record, including that found on Virtual VA. 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 Preliminary, the Board notes that the Veteran identified as relevant in her April 2012 Form 9, treatment records from Dr. Bret Butz of Alamogordo Pain and Spine Management, dated from January 2011 through March 2011. A review of the record, however, reveals that such treatment reports have not been associated with the claims file. VA has a duty to assist the Veteran in obtaining records not in the custody of a federal department, to include records from private care providers. 38 C.F.R. § 3.159(c)(1) (2013). Plantar Fasciitis The Veteran alleges entitlement to service connection for plantar fasciitis and asserts that it had its onset while on active duty. Upon VA examination of the bilateral feet in May 2012, the Veteran's left foot was found to be normal. Right foot findings were consistent with plantar fasciitis, tarsal tunnel syndrome and heel spur. The examiner opined that the Veteran's left foot condition was likely aggravated beyond the natural progression by her active military service. After a request for clarification from the RO, the examiner opined in a January 2013 addendum opinion, that the Veteran's left foot condition was not aggravated beyond the natural progression because examination of the left foot showed that there was no current disability and treatment records primarily concerned the right foot. The examiner failed on both occasions, however, to provide an opinion as to the etiology of the Veteran's right foot plantar fasciitis. The Board therefore finds that the aforementioned opinions are inadequate and a remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Mild Facet Osteoarthritis The Veteran also seeks an increased disability rating for her mild facet osteoarthritis. She reported on VA examination in March 2012 that flare-ups of her condition impacted the function of her thoracolumbar spine. While the examiner assessed the Veteran's range of motion upon repetitive-use testing, she did not provide an opinion as to the estimated loss of range of motion during flare-ups. As a result, the examination is inadequate. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups.) Thus, a remand is required for an opinion which will specifically address the nature and severity of any additional functional limitations, including limitation of motion, during flare-ups. Accordingly, the case is REMANDED for the following action: 1. The RO must attempt to obtain all outstanding private treatment records identified by the Veteran as relevant to the claims being remanded, including records from Dr. Bret Butz of Alamogordo Pain and Spine Management. The RO should specifically inform the Veteran that complete records from those treatment providers are not in VA's possession, and that such records are necessary to adjudicate her claims. The RO should request that the Veteran sign any necessary releases prior to attempting to obtain the identified records. All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow her the opportunity to obtain and submit those records for VA review. 2. After completing the above requested development, the RO should forward the claims file to the VA examiner who conducted the foot exam in May 2012, and who also rendered the addendum opinion in January 2013, to address the etiology of the Veteran's right foot plantar fasciitis. If that examiner is no longer available, arrange for a comparably qualified substitute, and if the examiner determines that a new VA examination is required, one should be scheduled. The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that any foot disorder was incurred during the Veteran's active service period from February 2002 to June 2002. If not, the examiner should address whether any foot disorder was incurred during subsequent periods of service, from August 2006 through September 2006, or from February 2009 to October 2009. If a foot disorder is deemed to have preexisted any period of service the examiner should so state (and identify an approximate date of onset). For all periods of active service following such onset, the examiner should state whether the preexisting foot disorder was permanently worsened beyond its natural progression. The opinion must specifically address both the left and right feet. The examiner should consider the Veteran's lay statements as to continuity of symptomatology and also consider her continued post-service treatments for right foot plantar fasciitis, such as the September 2009 assessment of right plantar fasciitis by the 3rd Medical Group, as well as the March 2010 assessment by Dr. Williams. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The RO should then forward the claims file to the VA examiner that conducted the March 2012 thoracolumbar spine exam for the purposes of providing an addendum opinion. If that examiner is no longer available, arrange for a comparably qualified substitute, and if the examiner determines that a new VA examination is required, one should be scheduled. The examiner must provide an opinion as to the estimated loss of degree of range of motion of the thoracolumbar spine during flare-ups of the Veteran's mild facet osteoarthritis. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered 4. Thereafter, the claims should be readjudicated, considering all evidence of record obtained since the prior supplemental statement of the case (SSOC). If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental SSOC and given the opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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. 2013). _________________________________________________ ERIC S. LEBOFF 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).