Citation Nr: 1602192 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 14-19 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an initial rating for service-connected bilateral plantar fasciitis in excess of zero percent prior to December 4, 2013 and 10 percent from December 4, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for bilateral plantar fasciitis and assigned a noncompensable (zero percent) disability rating. The Veteran disagreed with the assigned rating and perfected an appeal in April 2014. A March 2014 rating decision increased the assigned rating to 10 percent, effective December 4, 2013. The Veteran has not expressed satisfaction with the increased disability rating. This matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). In an April 2014 statement, the Veteran's representative indicated that the Veteran wanted a videoconference hearing before a Veterans Law Judge. However, the Veteran, through her representative, subsequently withdrew her request for a hearing in a July 2014 statement. See 38 C.F.R. § 20.704(e); see also statement of the Veteran's representative dated July 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action on her part is required. The Board notes that the April 2009 rating decision also granted service connection for a low back strain and assigned a noncompensable evaluation, effective December 29, 2007. The Veteran disagreed with the assigned rating in a May 2010 notice of disagreement (NOD). Following multiple conferences with a decision review officer (DRO), the Veteran submitted a January 2014 statement in which she indicated that she would be satisfied with a 10 percent evaluation for the low back strain. Thus, the March 2014 rating decision, which granted a 10 percent evaluation for the low back strain, effective the date of service connection, also indicated that the decision was considered a full grant of the Veteran's low back claim. As the Veteran did express satisfaction with the assigned 10 percent rating for the low back strain, the Board finds that the claim has been satisfied. C.f., AB, 6 Vet. App. at 38. The Board notes that, in the January 2014 statement, the Veteran asserted entitlement to an effective date prior to December 29, 2007 for the award of service connection for a low back strain. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). REMAND After having considered the matter, and for reasons expressed immediately below, the Board finds that further development is required before the appeal may be finally adjudicated. The Veteran was most recently afforded a VA examination in December 2013, at which time the examiner diagnosed her with acquired bilateral flat feet. The examiner did not confirm a diagnosis of bilateral plantar fasciitis, and evaluated only the diagnosed flat feet. Due to the December 2013 VA examiner's failure to diagnose plantar fasciitis, a VA medical opinion was obtained in March 2014 to determine whether the Veteran has a current diagnosis of plantar fasciitis. The March 2014 examiner reviewed the claims file and stated that he had been unable to "render [an] updated medical opinion consistent with the claimant's current situation" because he was unable to review the Veteran's current VA treatment records. The examiner noted that the most recent report available for review was a December 2010 report, which documented a diagnosis of plantar fascial fibromatosis and evaluated the Veteran for shoe inserts. The examiner then opined that, "[b]ased on available records reviewed up to December 29, 2010, it is my opinion, the claimant has [a] diagnosis of bilateral plantar fasciitis." The examiner noted that there is documented evidence that the Veteran has a mild pes planus deformity of the right foot only. The examiner further stated that, as to the bilateral flat feet disability, the disability is not acquired because "the flat foot is a separate condition" from the plantar fasciitis; "however, it may contribute to the development of plantar fasciitis." The examiner continued, "[b]ased on available records reviewed, it is also my opinion the claimant's feet complaints of bilateral heel pain are at least as likely as not consistent to the bilateral plantar fasciitis, and the flat foot on the right is at least as likely as not asymptomatic." As a result of the December 2013 VA examiner's failure to evaluate the service-connected bilateral plantar fasciitis, as well as the inability of the March 2014 VA examiner to review the Veteran's VA treatment records dated from December 2010, the Board finds that remand for another VA examination with medical opinion is necessary. Upon remand, any pertinent records of ongoing treatment should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. After all available records have been associated with the claims file, arrange for the Veteran to undergo VA examination to evaluate the service-connected bilateral plantar fasciitis. Prior to the examination, the Veteran's VA claims file must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. All indicated tests deemed necessary shall be conducted, including x-rays, and the results reported in detail. a. The examiner should report all current findings related to bilateral plantar fasciitis and provide an opinion as to the current severity of the disability. The examiner should specifically note whether there is objective evidence of marked or pronounced deformities, pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances on one or both feet. b. The examiner should report the range of motion of the bilateral feet in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the bilateral plantar fasciitis. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. If repetitive movement testing cannot be performed, this should be documented. c. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The examiner should express an opinion concerning whether there would be additional limits of functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of degree of additional range of motion loss. d. The examiner should equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits should be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion is not shown on the examination. The Board recognizes that this may require some degree of conjecture on the examiner's part; however, it is necessary in order to properly evaluate this disability. e. The examiner must describe the severity of the Veteran's bilateral plantar fasciitis, including rendering physical findings concerning said disability. In addition, the examiner should provide examples of functional impairments caused by the Veteran's bilateral plantar fasciitis. f. The examiner should also describe any occupational impairment attributed to the bilateral plantar fasciitis. g. The examiner must also provide an opinion as to whether the Veteran is diagnosed with flat feet and, if so, whether it is at least as likely as not (50 percent or greater probability) this disability is (1) caused or (2) aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected bilateral plantar fasciitis. A complete rationale for all opinions expressed by the VA examiner should also be provided. 3. Then, readjudicate the claim. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).