Citation Nr: 21065074 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 08-00 976 DATE: October 25, 2021 ISSUES An increased rating higher than 10 percent for left plantar fasciitis with pes planus prior to April 14, 2012. An increased rating higher than 10 percent for right plantar fasciitis with pes planus prior to April 14, 2012. REMANDED An increased rating higher than 10 percent for left plantar fasciitis with pes planus prior to April 14, 2012 is remanded. An increased rating higher than 10 percent for right plantar fasciitis with pes planus prior to April 14, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1984 to July 1984, from August1989 to July 1992, and from November 2004 to February 2006.The case is on appeal from an August 2006 rating decision. On his January 2008 VA Form 9, the Veteran requested a Travel Board hearing. However, in a February 2009 statement he withdrew his request. The August 2006 rating decision granted, in part, a non-compensable rating for the Veteran's claimed feet disabilities. In October 2011, the Board remanded the issues for a contemporaneous VA examination, further development, and readjudication. In an October 2012 rating decision, the RO granted the Veteran a 20 percent increase for his claimed feet disabilities effective April 14, 2012. The Veteran appealed the RO's decision. In July 2013, the Board remanded the issues for another contemporaneous VA examination and further development. In March 2016, the RO granted the Veteran a 50 percent increase for the claimed feet disabilities effective October 30, 2014. In March 2017, the Board remanded the issues for compliance with previous Board's remands pursuant to Stegall v. West,11 Vet. App. 268, 271(1998), and to request clarification from the RO as to the ratings granted and effective dates. In an October 2017 SSOC, the RO clarified that the Veteran's bilateral plantar fasciitis with pes planus was rated at 20 percent effective April 14, 2012, and at a single rating of 50 effective October 30, 2014. In March 2018, the Board issued a decision which granted the Veteran a 10 percent rating for his bilateral plantar fasciitis with pes planus prior to April 14, 2012, and a single 50 percent thereafter. The Veteran appealed the Board's March 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2018 Order, on the basis of an October 2018 Joint Motion for Partial Remand (JMPR), the Court remanded the Board's decision as to a higher increase rating for the period prior to April 14, 2012 for further action. Thus, the parties to the October 2018 JMPR limited the issue in the instant appeal to the increase rating issue for the specific time period. The matter was previously remanded in May 2019 and October 2020. However, for the reasons explained below, the Board once again remands this matter for an additional VA examination. Stegall v. West,11 Vet. App. 268, 271(1998), 1. An increased rating higher than 10 percent for left plantar fasciitis with pes planus prior to April 14, 2012 is remanded. 2. An increased rating higher than 10 percent for right plantar fasciitis with pes planus prior to April 14, 2012 is remanded. Since the last Board remand in October 2020 the Veteran was afforded a VA examination of his bilateral feet. Of record is also an addendum opinion. The Board notes that the June 2021 VA examination failed to address the retrospective opinion previously requested. Therefore, the AOJ obtained an August 2021 addendum opinion that addressed the requested retrospective opinion. However, the Board finds the August 2021 addendum opinion to be inadequate. The August 2021 addendum opinion was completed by a different examiner than the one who conducted the in-person examination in June 2021. Therefore, the August 2021 addendum opinion, while retrospective, is based solely on the evidence of record and heavily relies on the medical evidence of record available at the time of prior to April 14, 2012. As the Board explained in its May 2019 remand, the examiner is required to elicit relevant information as to the Veteran's flares for the period in question, 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. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). Given that the retrospective opinion provided is not based on information elicited from the Veteran himself, the case is remanded for further development as outlined below. An additional examination and VA retrospective opinion should be provided for the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of his bilateral plantar fasciitis with pes planus. Forward the Veteran's claims file to the examiner for review. The examiner is directed to provide an in-person examination for the purpose of eliciting relevant retrospective information as described herein. Specifically, the examiner is required to elicit relevant information as to the Veteran's flares for the period prior to April 14, 2012. The examiner must 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 for the period prior to April 14, 2012. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). If unable to provide such information, the examiner is to explain why he could not do so. As noted above, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups experienced during that period, and the degree of functional loss resulting from such flare-ups. After soliciting such relevant information from the Veteran, the examiner is directed to retrospectively address the severity of the Veteran's bilateral plantar fasciitis with pes planus for the period prior to April 14, 2012. Specifically, the examiner is to address the following: (a) To the extent possible, and for the period prior to April 14, 2012, the examiner should identify any symptoms and functional impairments due to the bilateral plantar fasciitis with pes planus alone and discuss the effect of the disability on any occupational functioning and activities of daily living. (b) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c) Special consideration should be given to the Veteran's lay statements as to pain experienced. In providing the requested opinions, the examiner must discuss the Veteran's lay statements as to his symptomatology during the time period under consideration. A complete rationale or explanation should be provided for any opinion reached. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.