Citation Nr: 21068749 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 10-21 585 DATE: November 12, 2021 REMANDED A rating higher than 20 percent for residuals of a fracture of the femur with degenerative joint disease (DJD) of the left knee, prior to October 15, 2019; and in excess of 30 percent thereafter. A rating higher than 10 percent for plantar fasciitis of the right foot (previously right foot strain). A rating higher than 10 percent for plantar fasciitis of the left foot (previously left foot strain with a calcaneal plantar spur). REASONS FOR REMAND The Veteran served on active duty from September 1979 to February 1989 and from February 1991 to April 1991. The case is on appeal from April 2009 and April 2015 rating decisions. In January 2019, the Veteran testified at a Board hearing. Most recently, in a December 2020 decision, the Board granted service connection for sleep apnea. The higher rating claims for residuals of a fracture of the femur with DJD of the left knee, right foot strain, and left foot strain with a calcaneal plantar spur, were remanded for additional development. The service-connected foot disabilities have been recharacterized above to comport with the evidence. 1. A rating higher than 20 percent for residuals of a fracture of the femur with DJD of the left knee, prior to October 15, 2019; and in excess of 30 percent thereafter. Pursuant to the December 2020 Board remand, the Veteran was afforded a VA examination in March 2021. Thereafter, in May 2021, VA records were associated with the Veteran's claims file indicating left knee treatment, to include steroid injections for pain, through VA's Choice Care program. The Veteran's non-VA Choice/Community Care records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. VA has a duty to obtain records in the custody of a Federal department or agency unless concluding they do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2). Thus, remand is warranted to obtain these records. In view of the remand, outstanding VA treatment records, as well as records from any Tricare facility the Veteran identifies, should be obtained and associated with the claims file. 2. A rating higher than 10 percent for plantar fasciitis of the right foot (previously right foot strain). 3. A rating higher than 10 percent for plantar fasciitis of the left foot (previously left foot strain with a calcaneal plantar spur). Pursuant to the December 2020 Board remand, the Veteran was afforded a VA foot examination in March 2021. The examination report reflects a worsening of the Veteran's right and left foot conditions consistent with a progression to plantar fasciitis. Although no flare-ups of foot symptoms were reported, see 14B., the examiner noted that the impact of flare-ups on the Veteran's ability to perform any type of occupational task was limitation of standing and ambulating for no more than 30 minutes. See 19. Based on the internal inconsistency, the opinion with respect to the foot disabilities is not completely adequate. The Board notes that the April 2021 addendum opinion does not address flare ups. Thus, a new VA examination is warranted. The matters are REMANDED for the following action: 1. Obtain outstanding non-VA Choice/Community Care records and VA treatment records, as well as records from any Tricare facility the Veteran identifies. If any of the records do not exist, or further attempts to obtain the records would be futile, notify the Veteran and her representative in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination by an appropriate clinician to assess the severity of the service-connected right and left foot conditions, now diagnosed as plantar fasciitis. This should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. The examiner should provide an opinion as to whether pes planus noted in the December 2019 VA examination report is related to the service-connected plantar fasciitis of the right and left foot or is an entirely separate disability. An opinion as to the severity of the right and left foot conditions should be provided in terms of moderate, moderately severe, or severe. If there are flare-ups, but if the examination is not conducted during a flare-up, an estimate as to functional loss due to flare-ups should be provided, with consideration of the Veteran's report of having severe flare-ups precipitated by exercise and prolonged standing and walking. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.