Citation Nr: 21066450 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-03 388 DATE: November 1, 2021 REMANDED Entitlement to a disability evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) with chronic alcohol abuse is remanded. Entitlement to a disability evaluation in excess of 10 percent for chronic cervical strain is remanded. Entitlement to a disability evaluation in excess of 10 percent for right foot plantar fasciitis is remanded. Entitlement to a disability evaluation in excess of 10 percent for left foot plantar fasciitis is remanded. Entitlement to a disability evaluation in excess of 10 percent for tinea versicolor of the chest is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2004 to April 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge (VLJ) in March 2021. A transcript of that hearing has been associated with the claims file. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based upon TDIU is part of an increased disability claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, in a March 2020 "Mental Health Examination" report, a private licensed mental health counselor obtained by the Veteran's attorney in support of his increased rating claim opined that the Veteran's mental health symptomatology rendered him 100 percent disabled due to occupational and social impairment. As such, the Board finds that the issue of entitlement to a TDIU has been expressly raised by the record and is thus properly before the Board. The Veteran seeks entitlement to higher disability evaluations for his service-connected PTSD with chronic alcohol abuse, chronic cervical strain, right foot plantar fasciitis, left foot plantar fasciitis, and tinea versicolor on chest, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. The Veteran was last provided with VA examinations to ascertain the severity of the claims on appeal in March 2015, over six years ago. At his March 2021 Board virtual hearing, the Veteran described symptoms associated with the disabilities on appeal that have worsened since last evaluated in March 2015. As the record suggests a worsening in the severity of the Veteran's service-connected PTSD, chronic cervical strain, right foot plantar fasciitis, left foot plantar fasciitis, and tinea versicolor since the March 2015 VA examinations, the Board finds that contemporaneous VA examinations should be obtained on remand. See VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Specifically, with respect to his service-connected tinea versicolor of the chest, the Veteran testified at his March 2021 Board hearing that the symptomatology associated with this disorder worsens in the winter season. When a claimant's medical history indicates that a Veteran's condition undergoes periods of remission and recurrence, VA is required to provide a medical examination during the period of recurrence. Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Voerth v. West, 13 Vet. App. (1999) (feasibility of scheduling an examination during an exacerbation is a factor in determining whether VA has a duty to provide such an examination). As such, to the extent feasible, the Veteran should be scheduled for another VA examination during a period of exacerbation of his service-connected skin condition. The Board acknowledges that the Veteran's attorney obtained an opinion in March 2020 from a private internal medicine physician with respect to the severity of his plantar fasciitis, obtained an opinion dated in March 2020 from a private licensed mental health counselor with respect to the severity of his PTSD, and provided a March 2021 record from a private chiropractor with respect to the severity of his cervical strain. In his March 2021 correspondence, the Veteran's attorney argued that the Board must rely on these "independent medical evaluation" reports alone, and that obtaining additional VA examination reports that may contradict the private medical opinions obtained by the attorney would constitute an adversarial action against the Veteran. The Board disagrees. The Board recognizes that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). However, the Board may order additional development for clarification when the evidence of record is insufficient or contradictory, as is the case here. For instance, the March 2020 opinion from the private licensed mental health counselor concluded that, "[The Veteran's] disability which results from the symptoms of his mental health diagnoses is rated at 100% due to total occupational and social impairment, persistent hallucinations, frequent panic attacks, grossly inappropriate behavior, paranoia and suspiciousness, low frustration tolerance, and angry outbursts. [The Veteran] is unable to establish and maintain effective relationships and cannot adapt to stressful circumstances." However, this is contradicted by VA mental health treatment records dated as recently as September 2020 showing that the Veteran was employed, denied hallucinations, indicated only one panic attack per year, and presented with appropriate, cooperative behavior. The March 2020 private licensed mental health counselor opinion is further contradicted by the Veteran's own testimony at his March 2021 Board virtual hearing that his PTSD symptomatology has been "pretty much consistent" since 2006. Additionally, while the March 2020 opinion from a private internal medicine physician goes into detail as to the likelihood that the Veteran's service-connected plantar fasciitis symptomatology caused or contributed to the development of secondary conditions, it does not provide sufficient detail to rate the Veteran's plantar fasciitis itself under all of the applicable diagnostic codes for the feet, which includes a new Diagnostic Code 5269 specifically for plantar fasciitis which took effect February 7, 2021. Similarly, while the March 2021 private chiropractor record generally averred that the Veteran's cervical spine ranges of motion were "restricted with pain," they did not provide specific range of motion findings, in degrees, using a goniometer. For these reasons, the Board finds that the private medical evidence obtained by the Veteran's private attorney, alone, is insufficient to grant the Veteran's increased rating claims in full. As such, remand for contemporaneous VA examinations is appropriate. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain the Veteran's VA treatment records from the VA Houston Health Care System, in Houston Texas, dated from November 2020 to the present, and associate these records with the claims file. All attempts to obtain these records must be documented in the claims file. The Veteran and his attorney must be notified of any inability to obtain the requested documents. 2. Request the Veteran submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 3. After the above development has been completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with chronic alcohol abuse. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. The examiner must consider and address the March 2020 private licensed mental health counselor opinion. 4. Reasonable attempts should be made to schedule the Veteran for an examination of his service-connected tinea versicolor of the chest during a period of exacerbation of the condition. All efforts to schedule the Veteran for such an examination must be fully documented in the claims file. The examiner should measure and record all objective findings and subjective complaints including measuring the percentage of the body and exposed area affected by the skin condition. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected plantar fasciitis of the right foot and left foot. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran's symptoms in accordance with VA rating criteria. The examination report should also address any functional loss caused by pain, fatigability, incoordination, weakness, or other symptoms of the plantar fasciitis. The assessment should include a finding as to whether the overall severity of the disability of each foot was moderate, moderately severe, or severe prior to February 7, 2021; and all signs and symptoms necessary for evaluating the Veteran's disability under the revised rating criteria since that time (to include whether the Veteran is a candidate for surgical intervention, whether no relief is obtained from non-surgical and surgical treatment). Additionally, the examiner is asked to specifically address and comment upon the March 2020 opinion of private internal medicine physician S. R. Baber, M.D., PhD., that the Veteran's service-connected plantar fasciitis accelerated the development of hallux valgus. A complete rationale for any opinion advanced must be provided. (Continued on the next page) 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his chronic cervical strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must provide a discussion of the functional effects of each disability evaluated. 7. If any benefit sought on appeal remains denied, then the Veteran and his attorney should be provided a Supplemental State of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.