Citation Nr: 1551080 Decision Date: 12/07/15 Archive Date: 12/16/15 DOCKET NO. 11-16 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 30 percent for service-connected bilateral plantar fasciitis. 2. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 for left foot surgery requiring convalescence. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1988 to June 1992. These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reason for Remand: To obtain the most recent VA treatment records, to schedule the Veteran for a VA examination and obtain a medical opinion. The Veteran was initially rated for tarsal tunnel syndrome, left foot under Diagnostic Code 5279. Effective in February 2000, the RO changed the diagnosis to bilateral plantar fasciitis and began rating the Veteran's service-connected foot condition under DC 5276, the diagnostic code for rating flat foot. This decision was based on evidence in the Veteran's service treatment records of bilateral foot problems and outpatient treatment reports showing continued visits at which steroids were injected to alleviate plantar fascia pain. An initial rating of 30 percent was assigned. In February 2008, the Veteran sought service connection for a right foot condition as secondary to a left foot condition. In an April 2008 statement, the Veteran indicated his belief that the discomfort in his right foot came from years of favoring the right foot due to disability in the left foot. He indicated having severe pain when walking and with weight bearing. He indicated wearing a brace and that it helped the pain, although it was uncomfortable. Notably, the Veteran was already service-connected for bilateral plantar fasciitis at that time. In April 2008, the Veteran underwent a VA examination. Examination revealed painful motion and tenderness bilaterally. Edema, disturbed circulation, weakness and atrophy of the musculature were not shown. It was noted there was pes planus present. In addition, on the right, a slight degree of valgus was noted, which could be corrected by manipulation. A moderate degree of valgus was seen on the left, which could be corrected by manipulation. Neither foot showed forefoot/midfoot malalignment. In addition, there was no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation or the whole foot everted on either the left or the right. The Achilles tendon revealed good alignment bilaterally. Pes cavus was not present and no hammer toes were found on examination of the feet. In addition, there was no evidence of Morton's Metatarsalgia, hallux varus or hallux rigidus. X-ray findings showed bilateral osteochondral exostosis of the proximal aspect of the first metatarsal with plantar and Achilles spurring. The examiner indicated the Veteran's proper diagnosis was bilateral plantar fasciitis, osteochondral exostosis, plantar and Achilles spurs and pes planus. In August 2008, the RO continued a 30 percent rating because the evidence of record did not show flatfeet not improved by orthopedic shoes, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo achillis on manipulation. In January 2009, the Veteran sought treatment for long standing right ankle pain and more severe, progressive left ankle and arch pain. He related that he had severe pain with ambulation daily for almost 2 years. The treatment provider identified posterior tibial tendonitis left. A CAM walker was ordered for the left lower extremity from prosthetics to immobilize the tendon. It was noted the Veteran understood the long term need for custom molded orthotics at minimum and possible surgical considerations pending MRI findings and risk of tendon tear/tenosynovitis versus immobilization. Pes planus deformity was noted. In February 2009, the Veteran was scheduled for surgery to address his tibialis posterior tendon tear and tenosynovitis left foot with possible tendon transfer and reattachment. This was leading to pain and difficulty with weight bearing and ambulating. It was indicated that after the repair, the Veteran was taking Vicodin. One week after the procedure, it was noted that the pain had reduced significantly after the second day and he had not been putting weight on his left foot. It was indicated sutures would be removed in 4 weeks in the absence of edema. The Veteran applied for leave pursuant to the Family and Medical Leave Act given that he could not carry and delivery mail for the Post Office following the surgery. It was anticipated that he would be recovering for six to eight weeks. In a March 2009 statement in support of claim, the Veteran indicated that he had been out of work since January 26, 2009 and did not expect to return until June 15, 2009. In addition, he stated that he believed the "tears were caused by favoring left foot while [he had been] wearing [a] weight bearing brace on right foot for pain over 18 months." In April 2009, the Veteran underwent a QTC examination. X-rays were taken of the Veteran's feet. Three views of each foot revealed an exostosis that was noted to be "presumably developmental involving the lateral aspect of the base of each first metatarsal." Hammertoe deformities of the third through fifth digits of each foot were noted along with bilateral plantar and posterior heel spurs. There was no hallux valgus or varus deformity. Bilateral pes planus was also noted. The Veteran reported pain in the bilateral feet which "occurs constantly." On a scale from 1 to 10, the Veteran classified his pain as an 8. It was indicated pain was relieved by rest, medication and inserts. The Veteran noted pain, weakness and stiffness when walking. It was indicated that examination of the feet did not reveal any signs of unusual shoe wear pattern. For ambulation, the Veteran required a brace on the ankles, crutches and shoe inserts due to pain, stability and his recent surgery. In May 2009, the Veteran sought follow-up treatment. He related he had little pain and was ambulating in newer, softer insoles. He stated he was wearing shoes and felt he was able to return to work. At the evaluation, mild plantar fasciitis, unchanged was noted. In July 2009, entitlement to a temporary total evaluation because of treatment for a service-connected condition was denied because the RO determined the surgery had not been for plantar fasciitis or any other disability for which the Veteran had been service-connected. In addition, the RO continued the 30 percent rating for bilateral plantar fasciitis. In December 2010, the Veteran underwent another VA examination. Symptoms on the left side included pain and swelling on the medial and top of foot, fatigability over the entire foot, weakness over the entire foot and lack of endurance over the entire foot. Pain and swelling were noted while standing, while walking and while at rest. On the right foot, pain, stiffness, weakness and lack of endurance over the entire foot were noted. It was indicated the Veteran was able to stand for 15 to 30 minutes and walk 100 yards. It was noted the orthotic inserts were being used for flat feet and that the efficacy of the corrective shoe inserts was poor. Moderate pronation was noted and partial correction of marked displacement of Achilles alignment with manipulation was noted bilaterally. No spasms or pain on manipulation were identified. It was noted there was no pain with forced dorsiflexion of the toes, or tenderness at the calcaneal origin of the plantar fascia. Bilateral heel spurs were noted in addition to minor degenerative change for age with decrease in plantar arch bilaterally. The examiner indicated that plantar fasciitis had been treated from 1998 until 2000 and was quiescent by examination. He indicated the most recent surgical procedures, to include a left foot posterior tibial tendon repair with tendon transfer surgery in February 2009 and a left subtalar joint arthroereisis in November 2009, were for bilateral pes planus and were not associated with plantar fasciitis. The examiner explained: Although mild flatfoot deformity bilaterally was noted in the service, his original service connection was for tarsal tunnel syndrome. Plantar fasciitis was later substituted/included after treatment of this condition in 1998, about 6 years after his discharge. He has never been treated for tarsal tunnel syndrome. His recent surgical treatment is for bilateral flatfoot deformity. The mild pes planus that was noted in the service was never felt to be a symptomatic problem by multiple physician and podiatrists. Treatment for this problem historically was between 2005 and 2009. Even allowing this his problems with flatfoot deformity started in 2005, there is no evidence of complaints of a flatfoot problem for over 10 years after his discharge. The QTC examination in 2009 added this diagnosis without supporting records review or rationale. The examiner also commented as to the relationship between pes planus and plantar fasciitis stating: Plantar fasciitis does not cause flatfoot deformity. Both those conditions are common, and can be seen together in the same individuals. However, plantar fasciitis is also commonly seen with many other foot deformities, including those that are the opposite of flat feet. A thorough review of the literature (20 million citations in the PubMed database) does not produce a single reference stating that plantar fasciitis causes flatfoot deformity or vice versa. Medical records reflect that on January 17, 2012, the Veteran underwent a left foot Evans calcaneal osteotomy, a left foot medial column plantarflexion osteotomy, a left foot posterior tibial tendon debridement, a left foot repair of the peroneal brevis tendon and a left leg gastrocnemius recession. On January 30, 2012, the Veteran filed a claim for a temporary total disability rating based on the surgeries and requested an increase in disability compensation for his left foot condition. In a March 2012 supplemental statement of the case, the RO concluded that the claims should be denied because the records did not show any recent treatment specifically for plantar fasciitis and that plantar fasciitis was unrelated to flat foot deformity. The RO continued the 30 percent rating based on the results of the December 2010 VA examination. In his April 2012 Form 9, the Veteran indicated his belief that the surgeries conducted on his ankle and feet were "to correct the problems that the plantar fasciitis constantly causes in [his] life." At his hearing before the Board in July 2015, the Veteran's representative pointed to internet research showing that gastrocnemius recession was related to the heel and plantar fasciitis and argued that the article provided evidence that a temporary 100 percent rating was warranted because part of the surgery "did include the heel, the plantar fasciitis." The internet article indicated that gastrocnemius recession is used for treatment of recalcitrant foot pain and that in the process of rebuilding fallen arches, the "calf muscle needed to be lengthened to get the heel back on the ground." The article also noted that gastrocnemius recession is commonly performed to correct an equinus contracture of the ankle that may accompany foot and ankle pathology. It was noted in the article that equinus deformity leads to "excessive pressure and pain that manifests as plantar fasciitis, metatarsalgia, posterior tibial tendon insufficiency, osteoarthritis, and foot ulcers." At the hearing, the Veteran also explained that he applied for an increased rating for his service-connected foot condition in 2009 because he was in constant pain every day and that he had been a letter carrier, but switched to a driving route on account of his foot pain. Based on a review of the evidence, the Board finds it necessary to an opinion as to whether it is possible to differentiate the symptoms caused by the Veteran's service-connected foot condition from those caused by non-service-connected foot conditions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (observing that when it is not possible to separate the effects of a service-connected condition and a non- service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service- connected condition). Currently, it is not entirely clear to the Board whether all of the Veteran's symptomatology can be attributed to his bilateral plantar fasciitis. In addition, his most recent examination that focused on the severity of his service-connected foot condition was in December 2010, nearly 5 years ago and there is evidence of record that his feet have continued to worsen. In claims for an increased rating, the current level of disability is most important. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). On remand, the Veteran should be scheduled for an examination with a VA podiatrist. The podiatrist should be asked to review the record and opine as to whether it is possible to differentiate which symptoms bothering the Veteran's feet are caused by his service-connected plantar fasciitis or whether it is not possible to make such a determination. An opinion should be provided regarding the symptomatology throughout the appeal period beginning in 2008. Also, the examiner is asked to review the record concerning the surgeries the Veteran had on his left foot in January 2012. Specifically, the examiner should consider the information provided by the Veteran concerning gastrocnemius recession and opine as to whether such surgery was necessary due to the Veteran's service-connected bilateral plantar fasciitis. Once an examination has taken place which demonstrates, to the extent possible, what symptoms are attributable to the service-connected bilateral plantar fasciitis throughout the course of the appeal period and provides an opinion as to the relationship between the Veteran's service-connected foot condition and the surgeries he underwent, the RO should readjudciate the claim in light of the additional evidence. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the claims file. 2. After all outstanding records are obtained, schedule the Veteran for a VA examination with a VA podiatrist to assess the current nature and severity of his service-connected bilateral plantar fasciitis. The electronic claims file should be made available for the examiner's review and it should be indicated that a review was made in the examination report. Any necessary tests should be conducted and it should be explained, to the extent possible, what symptoms are attributable to the Veteran's bilateral plantar fasciitis. If it is not possible to separate the effects of plantar fasciitis on the Veteran's overall foot condition from the effects of other foot disabilities that are not service-connected such should be stated. Any objective evidence of pronation or abduction should be noted. The examiner should also note any swelling and/or callosities, and whether such is bilateral or unilateral. Finally, it should be noted whether there is marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and/or severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances at any time during the appeal period. The examiner is also asked to opine as to whether any of the Veteran's left foot surgeries in January 2012 were in whole or part due to his service-connected foot condition. An opinion on this must be provided or the examination opinion will be found to be inadequate. The examiner should take into account the Veteran's lay arguments and the internet article indicating that gastrocnemius recession, which the Veteran underwent in January 2012, was for treatment of plantar fasciitis. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation, then he/she should indicate this and explain the reason why that is the case. A discussion of the underlying reasons for all opinions expressed must be included in the reviewer's report, to include reference to pertinent evidence of record and medical literature or treatises where appropriate. 3. Thereafter, the RO should review the record to ensure that all of the foregoing requested development has been completed. The RO should review the requested examination report and required medical opinion to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. The Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted to the fullest extent, the Veteran 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 appellant has the right to submit additional evidence and argument on the matter or 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).