Citation Nr: 20022076 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 12-34 724 DATE: March 30, 2020 REMANDED Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fascitis, for the period prior to January 2, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1990 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This matter was previously remanded by the Board in August 2015. The Veteran testified via video conference before a Veterans Law Judge (VLJ) in a May 2015 Board hearing. A transcript of that hearing has been associated with the claims file. In February 2020, the Board notified the Veteran and his representative that the VLJ who conducted the May 2015 hearing was no longer with the Board. The Veteran was offered a new hearing before another VLJ and was provided 30 days within which to respond. To date, the Veteran has not responded. As such, the Board will assume the Veteran does not want a new hearing and will proceed accordingly. See 38 C.F.R. § 20.707. 1. Entitlement to an initial disability rating in excess of 10 percent for bilateral plantar fascitis, for the period prior to January 2, 2017, is remanded. 2. Entitlement to a TDIU is remanded. The Board regrets the delay associated with this remand, particularly as this matter has been the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the August 2015 remand directives. See Stegall v. West, 11 Vet. App. 368, 271 (1998). Specifically, in March 2015, the Board instructed the AOJ to provide the Veteran with notice as to how to substantiate a claim for an increased rating on the basis of TDIU, and to request that he complete and return a TDIU claim form. However, there is no indication in the claims file that the Veteran was provided such notice or claim form. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (VA has the burden to demonstrate that notice was sent to the claimant’s last address of record); see also 38 C.F.R. § 3.1(q) (“Notice means written notice sent to a claimant or payee at his or her latest address of record.”). Additionally, the Board instructed the AOJ to obtain outstanding medical records from San Antonio Military Medical Center (MMC) and Wilford Hall at Randolph Air Force Base (AFB). Though medical records from San Antonia MMC have been associated with the claims file, there is no indication that such records have been requested from Wilford Hall. Further, the Board instructed the AOJ to provide the Veteran with a VA examination to determine the severity of his bilateral plantar fasciitis. As part of the examination, the Board instructed the examiner to describe the functional impairment resulting from the Veteran’s service-connected foot, knee, and back disabilities on his ability to function and perform tasks at work. Though the examiner addressed the functional impact of the Veteran’s bilateral plantar fasciitis on his ability to perform occupational tasks, the examiner did not address the functional impact of the Veteran’s combined disabilities. As the Board cannot find substantial compliance with the August 2015 remand directives, a remand is warranted to provide the Veteran with proper notice and to obtain outstanding medical records. See Stegall v. West, supra. Even if substantial compliance could be found, a remand would be warranted nonetheless as the medical evidence of record is unclear as to which of the Veteran’s foot symptoms are attributable to his service-connected bilateral plantar fasciitis. The Veteran has been diagnosed with bilateral plantar fasciitis and bilateral pes planus. See, e.g., November 2019 VA Foot Conditions Disability Benefits Questionnaire (DBQ). The Veteran is service-connected for bilateral plantar fasciitis; however, to date, the Veteran is not service-connected for bilateral pes planus, nor has he sought service connection. The Veteran was afforded VA examinations regarding his foot conditions in October 2013, May 2014, and November 2019. In these examinations, the Veteran consistently reported the need to walk on the sides of his feet at times, as well bilateral foot pain that is accentuated following prolonged standing, walking, and running. Additionally, the Veteran has reported tenderness on manipulation. See id.; May 2014 VA Foot Conditions DBQ; June 2014 VA Foot Conditions DBQ Addendum; October 2013 VA Foot Conditions DBQ. The Veteran has also submitted an examination conducted by a private physician, in which the physician noted that the Veteran’s foot conditions manifested with marked pronation, extreme tenderness of plantar surfaces, severe spasms of the achilles tendon on manipulation, and callosities. The physician further noted that the Veteran experiences pain, swelling, and excess fatigability. See January 2017 Private Foot Conditions DBQ. However, in each of the above examinations, it is unclear as to which symptoms may be attributed to his service-connected plantar fasciitis as opposed to his non-service-connected bilateral pes planus or other foot conditions. As such, a remand is warranted to allow the AOJ to request a medical opinion to clarify which symptoms and resulting functional impairments are attributable to his service-connected bilateral plantar fasciitis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Lastly, even if substantial compliance with the August 2015 remand directives could be found, as the matter of TDIU is inextricably intertwined with the Veteran’s claim for an initial rating in excess of 10 percent for his service-connected bilateral plantar fasciitis, a remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the matter is REMANDED for the following action: 1. Conduct the following development: (a.) With the Veteran’s assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA, military, or private, including records from Wilford Hall at Randolph AFB. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. (b.) Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development warranted by the information on the completed form. 2. AFTER COMPLETING THE ABOVE, AND ANY ADDITIONAL DEVELOPMENT WARRANTED BY THE RECORD, obtain an examination appropriate clinician to determine the severity of the Veteran’s bilateral plantar fasciitis. The entire claims file should be provided to and reviewed by the examiner. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. The examiner is asked to: (a.) Obtain a detailed lay history, including symptomatology and employment. The examiner must attempt to elicit information regarding the frequency, severity, and duration of any foot condition symptoms from November 2011 to present. (b.) To the extent possible, identify and address all symptoms that are attributable to the Veteran’s service-connected bilateral plantar fasciitis from November 2011 to present. (c.) If any symptom reported by the Veteran or documented in the Veteran’s medical records can be wholly attributed to a non-service-connected foot condition, the examiner is asked to identify such symptom and address why it cannot be attributed to the Veteran’s bilateral plantar fasciitis. (d.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. (e.) Explicitly address whether the Veteran’s bilateral plantar fasciitis has prevented him from obtaining or maintaining substantially gainful employment, and if so, the date on which employment was precluded. In making this determination, the examiner is instructed to address the Veteran’s lay statements regarding the severity of pain, particularly while standing or sitting. (f.) If there are any periods in which employment was not precluded by the Veteran’s bilateral plantar fasciitis alone, the examiner should address whether the Veteran was prevented from obtaining or maintaining substantially gainful employment due to his service-connected disabilities, INDIVIDUALLY AS WELL AS COMBINED, and if so, the date(s) on which employment was precluded. Any opinion expressed by the examiner MUST be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation should be provided 3. The AOJ MUST review the claims file and ensure that the foregoing development action has been completed in full. If any action is incomplete, the appropriate corrective action MUST be implemented. If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.