Citation Nr: 18160957 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 08-33 302 DATE: December 28, 2018 REMANDED Entitlement to a rating in excess of 10 percent for right foot pes planus with plantar fasciitis, prior to August 22, 2017. Entitlement to a rating in excess of 10 percent for left foot pes planus with plantar fasciitis, prior to August 22, 2017. Entitlement to a rating in excess of 50 percent for bilateral pes planus with plantar fasciitis from August 22, 2017 to present. REASONS FOR REMAND The Veteran had active service from September 1979 to March 1984. The matter on appeal comes to the Board of Veteran’s Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis. In a January 2012 decision the Board denied entitlement to a rating in excess of 10 percent for bilateral pes planus with plantar fasciitis in its application of Diagnostic Code 5276. 38 C.F.R. § 4.71a. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2014 Memorandum Decision, the Court vacated the denial and remanded the matter for additional development. In May 2014, the appeal returned to the Board. The Board awarded the Veteran separate 10 percent ratings for bilateral pes planus for each foot, applying a new Diagnostic Code 5284. The Veteran appealed the Board’s denial of benefits in excess of that granted to the Court. In May 2015, the Court vacated and remanded the May 2014 Board decision for additional development. Based on a Joint Motion for Partial Remand, the Court found that since the January 2007 VA examination, the Veteran has suggested that his bilateral foot disability had worsened coupled with evidence of prescription shoes, and ordered the Board obtain a new examination. The Board remanded the case in July 2015, and the VA examination was conducted in October 2015. In March 2016, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a Joint Motion for Remand. In July 2017, the Board remanded the claims for a VA examination to consider functional loss, and the implications of 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). A VA examination was conducted in August 2017. By May 2018 rating decision, the RO granted an increased rating for bilateral pes planus with plantar fasciitis, from 10 to 50 percent, under Diagnostic Code 5276, effective August 22, 2017, the date of the most recent VA examination. 1. Entitlement to a rating in excess of 10 percent for right foot pes planus with plantar fasciitis, prior to August 22, 2017. 2. Entitlement to a rating in excess of 10 percent for left foot pes planus with plantar fasciitis, prior to August 22, 2017. 3. Entitlement to a rating in excess of 50 percent for bilateral pes planus with plantar fasciitis from August 22, 2017 to present. In July 2017, the Board remanded the claims for a VA examination to consider functional loss, and the implications of 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 168 (2016), in accordance with the March 2017 JMR’s instructions. The July 2017 Board remand ordered that in conjunction with a VA examination, full range of motion testing must be performed. The range of motion in each foot must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must specifically address the nature of any foot pain on weight-bearing and any functional loss due to pain. A VA examination was conducted in August 2017. This examination did not include full range of motion testing. The range of motion in each foot was not recorded in both active and passive motion, in weight-bearing and nonweight-bearing. The examination report did not specifically address the nature of any foot pain on weight-bearing and while functional loss due to pain was addressed, there was insufficient detail provided. The record reflects that the Veteran retired from his employment as a letter carrier in September 2016. While the VA examiner indicated that the Veteran’s foot disabilities cause occupational impairment to include limitation on walking, the report does not explain the nature and extent of the limitation of walking nor include discussion specific to his current employment situation. A new VA examination is required to comply with the prior Board remand instructions, which are based on CAVC remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Thereafter schedule the Veteran for a VA examination to determine the current severity of his bilateral pes planus with plantar fasciitis. (a.) Full range of motion testing must be performed. The range of motion in each foot must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. The examination report must specifically address the nature of any foot pain on weight-bearing and any functional loss due to pain. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) The examiner is requested to estimate the additional functional limitation and range-of-motion loss due to pain and functional loss during flare-ups, repetitive use and repetitive use over time. (d.) The examiner should discuss the effect of the Veteran’s bilateral pes planus with plantar fasciitis on any occupational functioning and activities of daily living. The examiner is asked to detail the nature and extent of any limitations on occupational functioning and activities of daily living, and any impact on the Veteran’s career and retirement as a letter carrier. (e.) If an opinion is not possible without resorting to speculation, the examiner must adequately explain why. The examiner must consider all procurable and assembled data, and show whether any inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large, a limitation based on a lack of expertise, insufficient information, or unprocured testing of the individual. 3. After the above is complete, readjudicate the Veteran’s claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev