Citation Nr: 21075709 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-44 623 DATE: December 21, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis with bilateral calcaneal spurs is remanded. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease, status post lumbar fusion L4-S1 is remanded. Entitlement to a rating in excess of 10 percent for diverticulitis, status post resection of the small intestine is remanded. Entitlement to an initial rating in excess of 10 percent for left ankle achilles tendonitis is remanded. Entitlement to an initial compensable rating for bilateral feet tinea pedis with bilateral toenails onychomycosis is remanded. REASONS FOR REMAND The Veteran had active service from June 1983 to September 1983 and from April 1989 to July 2014. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the issues on appeal and assigned initial ratings effective August 1, 2014. In a November 2015 rating decision, the RO awarded an increased 10 percent evaluation for the Veteran's left ankle achilles tendonitis for the entire appellate period. As this evaluation is less than the maximum benefit allowed under VA law and regulations, the claim for an increased rating for left ankle achilles tendonitis remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran was scheduled for a December 2021 Board virtual hearing before the undersigned Veterans Law Judge (VLJ). The hearing was unable to be completed due to audio issues. In lieu of the hearing, the Veteran's representative instead submitted a written brief, and the Veteran also submitted a written statement in support of his appeal. The Veteran is not prejudiced by the Board proceeding with the appeal. 1. Entitlement to an initial rating in excess of 30 percent for bilateral plantar fasciitis with bilateral calcaneal spurs is remanded. 2. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease, status post lumbar fusion L4-S1 is remanded. 3. Entitlement to a rating in excess of 10 percent for diverticulitis, status post resection of the small intestine is remanded. 4. Entitlement to an initial rating in excess of 10 percent for left ankle achilles tendonitis is remanded. 5. Entitlement to an initial compensable rating for bilateral feet tinea pedis with bilateral toenails onychomycosis is remanded. Issues 1-5: The Veteran seeks higher ratings for his service-connected bilateral plantar fasciitis, lumbar spine disability, diverticulitis, left ankle disability, and bilateral tinea pedis with onychomycosis. A review of the record reveals that current VA examinations are needed in order to accurately assess the severity of these disabilities. The Board notes that the Veteran's last VA examinations were conducted in August 2014, more than seven years ago. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Green v. Derwinski, 1 Vet. App. 121, 214 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). This includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of veteran because a 23-month-old exam was too remote in time to adequately support the decision in an appeal for an increased rating). As well, the Veteran has reported that his disabilities have worsened in severity since the initial ratings were assigned. See December 2021 brief. Accordingly, more contemporaneous VA examinations are required to provide current pictures of the Veteran's disabilities. 38 C.F.R. §§ 3.326, 3.327. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2015 to the present. 2. Then schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral plantar fasciitis with bilateral calcaneal spurs. 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine degenerative disc disease, status post lumbar fusion L4-S1. 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected diverticulitis, status post resection of the small intestine. 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. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left ankle achilles tendonitis. 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. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral feet tinea pedis with bilateral toenails onychomycosis. 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. 7. Then readjudicate the issues on appeal. If the claims are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and allow the appropriate time for response. On remand, the Veteran may submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Dean, 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.