Citation Nr: 1342920 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 08-23 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for bilateral plantar fasciitis and pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The RO in Waco, Texas, currently has jurisdiction of the claim. When this case was previously before the Board in November 2011, it was remanded for additional development. 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 A preliminary review of the record indicates that this claim requires additional development. In August 2012, the Veteran submitted an August 14, 2012, treatment record from the William Beaumont Army Medical Center. The Veteran complained of chronic foot pain. On examination, he had bilateral tenderness on palpation of the metatarsal, tenderness on palpation of the medial aspect of the right heel, tenderness on palpation of the left calcaneal tuberosity medial aspect, tenderness on palpation of the medial plantar aspect of the left heel, tenderness on palpation of the plantar-lateral aspect of the left heel, and tenderness on palpation of the left plantar aspect. The Board finds that these symptoms are relevant to the criteria set forth at Diagnostic Codes 5276 and 5278, under which the Veteran's disability is evaluated. When compared to the May 2010 VA examination report, they suggest that the Veteran's symptoms may have increased in severity since that time. The Court of Appeals for Veterans Claims has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In addition, statutes and regulations require that VA assist a claimant by providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. At the time of the August 2012 appointment, the Veteran was referred for a specialty podiatry consult. However, the record before the Board, including the Veteran's Virtual VA and VBMS eFolders, is negative for any subsequent podiatry consultation report or any subsequent attempts to obtain such a report. The most recent VA treatment record before the Board is dated May 12, 2010. However, in December 2011 correspondence, the Veteran reported that he had received podiatric treatment in October 2010 and February, June and October 2011 from the VAHCS in El Paso, Texas. During the August 2012 appointment at the William Beaumont Army Medical Center, the Veteran recounted that he was currently receiving VA medical treatment for his service-connected bilateral foot disability. Statutes and regulations require that VA assist a claimant by obtaining medical records that are necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA treatment records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Moreover, one of the purposes of the Board's November 2011 remand was to obtain records of treatment for the service-connected foot disability since December 2007. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all VA medical records (including records of podiatric treatment at the VAHCS in El Paso) dated after May 12, 2010. 2. Obtain and associate with the record copies of all medical records (including records of podiatry consultations) from the William Beaumont Army Medical Center dated after August 14, 2012. 3. After completion of the foregoing, schedule the Veteran for a VA foot examination. The claims file, relevant contents of the eFolders and a copy of this remand must be made available to the examiner in conjunction with the requested examination. All necessary tests should be conducted. The examiner should identify all residuals attributable to the Veteran's service-connected bilateral plantar fasciitis and pes planus. The examiner should indicate whether or not there is moderate pes planus, bilateral or unilateral weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. The examiner should also indicate whether or not there is pes cavus, bilateral or unilateral great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads. The examiner should determine the degree of severity of the Veteran's bilateral plantar fasciitis and pes planus (i.e., moderate, moderately severe, or severe). The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. E. LARKIN 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).