Citation Nr: 1800980 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-33 776A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating for bilateral plantar fasciitis in excess of 30 percent. 2. Entitlement to a rating in excess of 30 percent for migraine headaches. 3. Entitlement to service connection for bilateral hallux valgus (bunions). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 2007 to August 2010. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2017, this appeal was remanded to the Agency of Original Jurisdiction for further development. Specifically, the appeal was remanded to afford the Veteran a new VA examination for her migraines, bilateral plantar fasciitis, and bilateral hallux valgus as well as to obtain additional service treatment records (STRs). Since the remand, none of the May 2017 remand directives have been complied with. The Veteran has not been scheduled for a VA examination for any of the issues on appeal, and no additional records have been associated with the file. As such, there has not been substantial compliance with the previous remand, and further remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Per the May 2017 remand, further evidentiary development is necessary as described below. The Board finds that new VA examinations are necessary for each issue on appeal as the previous VA examinations are not adequate. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hallux Valgus The Veteran was afforded VA examinations in March 2011 and August 2016 to determine the nature and etiology of her bilateral bunions. In March 2011, the VA examiner diagnosed the Veteran with "mild bunion/hallux valgus with adequate range of motion," bilaterally. He noted that the Veteran's bilateral bunions were not tender, and he opined that this was a "congenital issue that [did] not appear to have been aggravated by her military service." However, the VA examiner did not explain why he believed this condition to be congenital, and the Board notes that bunions were not noted on the Veteran's entrance examination report. Moreover, the examiner did not provide a rationale for his negative opinion regarding any aggravation during service. For these reasons, the March 2011 VA feet examination is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The August 2016 VA foot examination is also inadequate as to the issue of service connection for bilateral bunions. The VA examiner stated that the Veteran did not have symptoms due to a hallux valgus condition; this is inconsistent with the earlier diagnosis of hallux valgus in the March 2011 VA examination. Because the Veteran had the diagnosis during the appeal period, the VA examiner needed to address that diagnosis and whether it was accurate or in error. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, remand is necessary to obtain a new VA feet examination regarding the Veteran's bilateral hallux valgus. Bilateral Plantar Fasciitis The August 2016 VA foot examination is also inadequate as to the issue of a rating in excess of 30 percent for bilateral plantar fasciitis. The VA examiner indicated that there was pain, weakness, fatigability or incoordination that significantly limited functional ability when the foot was used repeatedly over time. However, the examiner did not describe the functional loss. In addition, the VA examiner's opinion that there was no functional impact was inconsistent with the Veteran's reports that she had difficulty walking and standing for long periods and had stopped running. Therefore, the VA examination was inadequate as to the issue of a rating in excess of 30 percent for bilateral plantar fasciitis. For these reasons, remand is necessary to obtain a new VA feet examination regarding the Veteran's bilateral plantar fasciitis as well. Migraines The Board also finds the August 2016 VA headache examination to be inadequate. The VA examiner's opinion as to the frequency and severity of the Veteran's headaches was based solely on the Veteran's report of having only had one migraine headache requiring bed rest during the prior six months. However, this opinion did not take into account the Veteran's typical impairment throughout the entire period on appeal. As such, a remand is necessary to obtain a new VA examination. Finally, remand is also necessary to obtain any outstanding STRs. See 38 C.F.R. § 3.159(c)(2). The Board observes that during the April 2011 VA examination, the Veteran reported seeking medical attention and obtaining a medical profile for migraine headache symptoms. She also reported having a "no running" profile during service related to her bilateral bunions and bilateral plantar fasciitis. Although the Veteran's claims file contains STRs, those records appear to be incomplete based on the limited records from 2008, 2009, and 2010 and the lack of a separation examination. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any relevant and outstanding VA treatment records. Additionally, have the Veteran identify any additional treatment records regarding her feet and migraine conditions. If necessary, obtain authorization to enable the AOJ to obtain any additional evidence. If additional records are identified and the AOJ is unsuccessful in its efforts to obtain any such evidence, it should inform the Veteran and her representative of such and request that they submit the outstanding evidence. 2. Ensure that the STRs are complete. Obtain any outstanding STRs. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the VBMS file. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of her bilateral bunions. For each issue on appeal, the claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. As to the Veteran's claim for bilateral bunions, the examiner is asked to respond to each of the following: (a) Indicate whether the Veteran has any current bilateral bunions. (b) If a bunion is present, indicate whether it is a congenital disease or defect. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature, and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. (c) If it is determined that any current bunions are considered a congenital defect, then provide an opinion as to whether it is at least as likely as not that the congenital defect was subject to a superimposed injury during service. In so doing, please refer to supportive evidence of record. (d) If any current bunion is a congenital disease, then provide an opinion as to whether the disease clearly and unmistakably existed prior to service (it was not noted on August 2007 entrance examination report), and if so, provide an opinion as to whether the pre-existing disease clearly and unmistakably was NOT aggravated during service. (e) If any current bunion is not congenital in nature and/or did not clearly and unmistakably preexist service, provide an opinion with supporting rationale as to whether it is at least as likely as not that it had its onset during active service or is otherwise related. . THE EXAMINER IS ADVISED that he or she must provide an explanation for any conclusions reached. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected migraine headaches. The examiner must provide all information required for rating purposes. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected bilateral plantar fasciitis. The examiner must provide all information required for rating purposes. 6. Thereafter, readjudicate the remaining claims on appeal. If the benefits sought on appeal are not granted in full, issue the Veteran and her representative a supplemental statement of the case and provide the Veteran an 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). 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). _________________________________________________ GAYLE E. STROMMEN 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) (2017).