Citation Nr: 1803592 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-02 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable rating for service-connected bilateral plantar fasciitis, effective July 1, 2012, and in excess of 10 percent effective December 13, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from June 1992 to June 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction has since been transferred to Roanoke, Virginia (hereinafter, Agency of Original Jurisdiction (AOJ)). The AOJ granted service connection for left and right foot plantar fasciitis and assigned an initial noncompensable rating, effective July 1, 2012. In the August 2014 rating decision the AOJ granted an increase to 10 percent disabling for the Veteran's left foot plantar fasciitis, effective December 13, 2013. The Board notes that the AOJ has assigned separate ratings for plantar fasciitis for separate periods of time during the appeal period. Thus, the Board has characterized this claim in light of the distinction noted in Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim, a practice known as "staged ratings.") The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran contends that the symptoms associated with his service-connected bilateral foot disability have worsened. As such, he seeks entitlement to an initial compensable rating for service-connected bilateral plantar fasciitis, effective July 1, 2012, and in excess of 10 percent effective December 13, 2013. The claims file includes an undated private treatment letter from the Veteran's podiatrist, noting that his limb length discrepancy and bilateral calcaneal heel spurs with moderate plantar fasciitis have been successfully prevented from progressing with the Veteran's treatment, including the use of orthotics, anti-inflammatory medication, stretches, massages, and limited activity. The letter also noted symptoms of collapsed arch height, forefoot abduction, and hindfoot eversion. In connection with the claim, the Veteran underwent VA examination most recently in July 2014. The examiner noted that the Veteran's claims file was not reviewed, but determined that the Veteran's plantar fasciitis and plantar calcaneal spur caused pain on movement, during weight-bearing and non-weight-bearing, resulting in functional loss of increased pain while walking and during flare-ups. There is no further information regarding the nature, duration, and severity of the Veteran's flare-ups. The Court has recently made clear that a statement such as the one the July 2014 VA examiner made concerning flare-ups, without more explanation as to the affect such flare-ups cause on the Veteran's disability, renders an examination inadequate. See Sharp v. Shulkin, Vet.App., 2017 WL 3879425 (Sept. 6, 2017). As the Court explained in Sharp, "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Id. at 6. Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the veteran's lay information-or explain why he could not do so. Additionally, in the December 2017 informal hearing presentation the Veteran, through his representative alleged that the Veteran's disabilities have gotten worse since his last VA examination. Therefore, to ensure that the evidence of record reflects the current severity of the Veteran's service-connected bilateral plantar fasciitis, a more contemporaneous examination is warranted. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (VA is obligated to provide a new examination when a Veteran asserts that the service-connected condition has become more severe.). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder updated private and VA treatment records. 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected bilateral foot disabilities. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate the severity of the disability during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. The VA examiner should provide a complete rationale for any opinions provided. 3. Thereafter, the Veteran's claims should be readjudicated. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. 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 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). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).