Citation Nr: 1802529 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-06 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected recurrent paroxysmal atrial fibrillation, status post ablation. 2. Entitlement to an initial compensable disability rating for service-connected plantar fasciitis of the right foot prior to May 6, 2015, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from October 2000 to December 2009. These matters come on appeal before the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. The Veteran testified before the undersigned Veterans Law Judge at an August 2012 video conference hearing. A transcript of the hearing has been associated with the claims file. The appeal was remanded in January 2015 and again in November 2016 for further development, however additional development is still necessary. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets further delay in this appeal, following two similar remands, however, as the mandates of those remands have not yet been followed, a remand is necessary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In its last, November 2016 remand, the Board noted that previous examinations were inadequate because the former May 2015 VA examiner incorrectly relied upon March 2013 electrocardiography (ECG) findings which did not demonstrate a contemporaneous disability picture. The Board noted that a new examination should be conducted and that current records of ECG or Holter monitor testing should be requested. Thereafter, new examinations were conducted in January and June 2017. However, neither heart examination included contemporaneous ECG findings. The Veteran's June 2017 VA examination found that the Veteran's last ECG was normal and that he would have a repeat an ECG, however no follow-up is demonstrated by the record. Further, in its November 2016 remand, the Board noted that the Veteran's VA examiner had failed to demonstrate the Veteran's right foot range of motion in degrees, as requested in the January 2015 Remand and that passive motion and weight-bearing tests should are necessary on examination. Correia v. McDonald, 28 Vet. App. 158 (2016). Despite these instructions, the Veteran's January 2017 and June 2017 examiners failed to provide range of motion findings in degrees. Finally the January 2017 VA examiner found that passive range of motion and weight bearing testing "Cannot be performed or is not medically appropriate. None noted on exam. Yes." The June 2017 VA examiner stated "Passive and active ROM are the same and are included in the initial ROMs above." However no such findings were reported. Accordingly, the claims file is returned for completion of the requested development above. The RO is reminded that the claims file should only be returned to the Board upon completion of the Remand instructions. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and elicit from him the appropriate information and consent to obtain any outstanding VA and/or private treatment records with respect to his paroxysmal atrial fibrillation and plantar fasciitis of the right foot. After securing the appropriate consent from the Veteran, VA should attempt to obtain any such treatment records that have not been associated with the Veteran's VA claims folder. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. 2. After completing the above and associating any outstanding evidence with the claims file, schedule the Veteran for a VA examination to determine the current severity of his service-connected recurrent paroxysmal atrial fibrillation, status post ablation. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated tests, to include a new ECG, and studies should be performed, and all findings should be set forth in detail. The VA examiner should identify all present symptoms and manifestations attributable to the Veteran's service-connected recurrent paroxysmal atrial fibrillation, status post ablation. The examiner is asked to discuss the number of episodes of paroxysmal atrial fibrillation experienced by the Veteran per year documented by ECG or Holter monitor. If any additional heart symptomatology is found on examination, the examiner should specifically indicate whether such is part and parcel, or the result of, his service-connected paroxysmal atrial fibrillation. An explanation should be provided for any opinion offered. 3. Schedule the Veteran for VA examination to determine the current severity of his service-connected plantar fasciitis of the right foot. The claims folder must be made available to and reviewed by the examiner. All indicated studies, including x-rays and range of motion studies in degrees, should be performed. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing, and nonweight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examiner concludes that it is not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for such determination. 4. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claims. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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. §§ 5109B, 7112 (2012). _________________________________________________ M.H. HAWLEY 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).