Citation Nr: 21003395 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-21 428 DATE: January 21, 2021 REMANDED Entitlement to an increased initial evaluation of 10 percent, but no higher, for bilateral pes planus with plantar fasciitis, prior to January 14, 2013, is remanded. Entitlement to an increased evaluation in excess of 30 percent for bilateral pes planus with plantar fasciitis, from January 14, 2013 forward, exclusive of a period of temporary total evaluation, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1972 to October 1983, and again from August 1990 to December 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted entitlement to service connection for bilateral pes planus with a noncompensable evaluation. On August 10, 2020, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issues of an increased initial evaluation of 10 percent for bilateral pes planus with plantar fasciitis, prior to January 14, 2013, and an increased evaluation in excess of 30 percent for bilateral pes planus with plantar fasciitis, from January 14, 2013 forward, exclusive of a period of temporary total evaluation, both back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court’s remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated September 9, 2020 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and the Veteran’s representative submitted an updated appellate brief on January 12, 2021. See Clark v. O’Rourke, 30 Vet. App. 92 (2018). The substance of the Court’s JMR will be discussed further in the remand section below. In January 2018 and again in May 2019, the Board remanded the above issues. Based on the Court’s JMR, the issues must again be remanded. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in a March 2019 rating decision, the evaluation for the bilateral pes planus with plantar fasciitis disability was increased to 30 percent disabling, effective January 14, 2013, exclusive of a period of temporary total evaluation from February 8, 2013 to April 1, 2013. See 38 C.F.R. §§ 4.29, 4.30. Additionally, in a July 2019 rating decision, the evaluation of the disability was increased from noncompensable to 10 percent disabling, from August 31, 2012 to January 14, 2013. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The period of the temporary total evaluation from February 8, 2013 to April 1, 2013 is not on appeal and as such will not be discussed. 38 C.F.R. §§ 3.401, 4.29, 4.30. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing in October 2017. A transcript of that hearing is of record.   1. Entitlement to an increased initial evaluation of 10 percent, but no higher, for bilateral pes planus with plantar fasciitis, prior to January 14, 2013, is remanded. 2. Entitlement to an increased evaluation in excess of 30 percent for bilateral pes planus with plantar fasciitis, from January 14, 2013 forward, exclusive of a period of temporary total evaluation, is remanded. As noted above, the Court vacated and remanded the Board’s May 2019 decision, which denied entitlement to an increased initial evaluation in excess of 10 percent for bilateral pes planus with plantar fasciitis, prior to January 14, 2013, and an increased evaluation in excess of 30 percent for bilateral pes planus with plantar fasciitis, from January 14, 2013 forward, exclusive of a period of temporary total evaluation. The Court, in its Joint Motion for Remand (JMR), called attention to the February 2013 and March 2018 VA examiners’ reports and opinions, upon which the Board relied for its decision. No. 19-6366, 2019 U.S. App. Vet. Claims (Aug. 10, 2020) (unpublished). The Court also referred to a missing private record referenced by the Veteran but which does not directly appear in the claims file. The Court specifically mentioned in their JMR a “Dr. Laha” that was referenced in a July 30, 2014 VA podiatry treatment note, and directed VA to obtain the medical record referenced by the Veteran if at all possible. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. “Relevant records” to be considered to determine a veteran’s eligibility for compensation benefits are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran’s bilateral pes planus with plantar fasciitis is currently rated under Diagnostic Code (DC) 5276, for flatfoot, acquired. 38 C.F.R. § 4.71a (2020). Under current law and regulation, the Board notes that plantar fasciitis is not specifically listed in the rating schedule, though a rating under Diagnostic Code 5284 may be considered. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (Diagnostic Code 5284 only applies to foot disabilities for which there is not already a specific Diagnostic Code). However, the Board notes that the diagnostic code rating criteria for the feet as outlined in 38 C.F.R. § 4.71a, among other criteria for the musculoskeletal system and muscle injuries, will change on February 7, 2021, shortly after the issuance of this Board remand. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board calls attention to the addition of a new Diagnostic Code 5285 for plantar fasciitis, which may be applicable given the Veteran’s current diagnosis of bilateral pes planus with plantar fasciitis. See id.; 38 C.F.R. § 4.71a (changes to take effect Feb. 7, 2021). In addition, because the Court is vacating a Board decision that considered and evaluated an earlier period of the Veteran’s bilateral pes planus with plantar fasciitis, the Board will request in this remand for a retrospective opinion to consider whether medical evidence in the claims file for this period affect or alter the previous 10 percent evaluation of the Veteran’s bilateral pes planus disability prior to January 14, 2013. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating “cannot be awarded based on the available evidence,” VA must determine whether a medical opinion, including a retrospective opinion, “is necessary to make a decision on the claim.” Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Therefore, this appeal is remanded for a VA examination to examine the current nature and severity of the Veteran’s bilateral pes planus with plantar fasciitis for both periods of evaluation that currently exist, to include a retrospective opinion to address the evidence in the claims file prior to January 14, 2013 pertaining to the Veteran’s service-connected bilateral pes planus disability. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. With regard to the Court’s specific mention in their JMR as noted above, contact the Veteran to ascertain the identity of a “Dr. Laha” that was referenced in a July 30, 2014 VA podiatry treatment note, obtain the medical record referenced by the Veteran if at all possible, and associate it with the claims file. 2. After the above records search is complete, schedule the Veteran for a VA examination with an examiner of the appropriate qualification and expertise to evaluate the nature and severity of the Veteran’s bilateral pes planus with plantar fasciitis. The examiner who performs this examination is requested to assess the Veteran’s bilateral pes planus for the all periods since the original effective date, to include the period earlier than January 14, 2013, and provide a retrospective opinion regarding the appropriate evaluation for the Veteran’s bilateral pes planus for the earlier period as well as for the current nature and severity. In forming the opinion of the Veteran’s nature and severity of the bilateral pes planus, retrospective and current, the examiner must consider all lay statements of record. For both the VA medical examiner assigned this examination, and the RO adjudicator who will address this appeal, attention is invited to the updated ratings criteria for the feet, among other changes in criteria for musculoskeletal system and muscle injuries, in 38 C.F.R. § 4.71a that will take effect February 7, 2021. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.