Citation Nr: 21076008 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 06-07 026A DATE: December 22, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for bilateral plantar fasciitis with calcaneal heel spurs prior to September 12, 2006, is remanded. Entitlement to a rating higher than 30 percent for bilateral plantar fasciitis with calcaneal heel spurs from September 12, 2006, is remanded. REASONS FOR REMAND The Veteran had service in the Air National Guard from January 29, 1980 until June 21, 1997, with active duty service from March 1980 to August 1980 and various periods of both active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in February 2005, which granted service connection for left and right plantar fasciitis and calcaneal heel spurs, with separate noncompensable ratings for each foot assigned effective March 22, 2000. The Veteran appealed. In an October 2006 rating decision, the RO recharacterized the disability as bilateral plantar fasciitis and calcaneal heel spurs and assigned a 30 percent rating effective September 12, 2006. The Veteran and his wife presented testimony at a personal hearing before the undersigned Acting Veterans Law in March 2009. A transcript is of record. The Board issued a decision in January 2011 which granted a 10 percent rating for bilateral plantar fasciitis and calcaneal heel spurs prior to September 12, 2006, and denied a rating higher than 30 percent as of that date. The Veteran appealed the Board's January 2011 decision regarding the claim for increased rating for the bilateral foot disorder to the United States Court of Appeals for Veterans Claims (Court). In an August 2011 Joint Motion for Partial Remand (Joint Motion), the parties requested that the Court vacate the January 2011 Board decision that denied entitlement to a rating higher than 10 percent prior to September 12, 2006, and a rating higher than 30 percent as of September 12, 2006, for bilateral plantar fasciitis and calcaneal heel spurs. In an August 2011 Order, the Court granted the Joint Motion. The claim for increased rating was subsequently remanded by the Board in May 2012. The Veteran and his wife presented testimony at a videoconference hearing before Veterans Law Judge Banfield in May 2016. A transcript is of record. All Veterans Law Judges who conduct hearings must participate in making the final determination of the claims on which testimony was received. 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604. By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members. 38 U.S.C. § 7102(a). Thus, when an appellant has had a personal hearing before two separate Veterans Law Judges during the appeal on common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held. At the time of the May 2016 hearing, Veterans Law Judge Banfield explained during the prehearing conference the fact that some of the issues on appeal had already been the subject of a hearing by the Acting Veterans Law Judge and that the Veteran had the right to have a third hearing since two Judges would be deciding those issues. The Veteran indicated that he was waiving the right for a third hearing. Given the Veteran's waiver of a third hearing, the Board proceeded with adjudicating the claims, see Arneson v. Shinseki, 24 Vet. App. 379 (2011), which were remanded in December 2016, February 2018, and August 2021. 1. An initial rating higher than 10 percent for bilateral plantar fasciitis with calcaneal heel spurs prior to September 12, 2006, is remanded. 2. A rating higher than 30 percent for bilateral plantar fasciitis with calcaneal heel spurs from September 12, 2006, is remanded. The Board remanded these claims in August 2021 to schedule the Veteran for a foot examination to address the symptomatology associated with the service-connected bilateral plantar fasciitis with calcaneal heel spurs. The examiner was asked to report all symptomatology associated with the disability; to indicate whether the treatment for bilateral plantar fasciitis provides no relief, partial relief, or full relief of the attributable symptoms and impairment; to discuss whether the diagnosed bilateral pes planus is a distinct disorder or a maturation of the service-connected bilateral plantar fasciitis with calcaneal heel spurs; to discuss what symptomatology is specific to the active service-connected bilateral plantar fasciitis with calcaneal heel spurs if the bilateral pes planus is a distinct disorder; and to discuss what symptoms were attributable to the degenerative changes of the Veteran's forefeet. The examination conducted in September 2021 is not complete. The Board initially notes that the examiner stated that the "diagnosis of bilateral pes planus (left and right) is not a distinct disorder or a maturation of the service-connected bilateral plantar fasciitis with calcaneal heel spurs as plantar fasciitis and/or calcaneal heel spurs is not the causative factor for the development of symptoms related to bilateral pes planus." While the Board assumes there is a typo and the examiner meant to say that it is a distinct disorder and not a maturation of the service-connected disability, clarification is needed. In addition, while the Board acknowledges that the VA examiner indicated that symptoms reported in the examination report were subjective only as the Veteran is a poor historian, uncooperative, and easily agitated with answering questions, the examiner did not specify what symptoms were specific to the service-connected disability, the bilateral pes planus, or the degenerative changes of the Veteran's forefeet. The examiner also indicated that the Veteran has bilateral hallux valgus, and it is unclear what symptoms, if any, are attributed to that disorder. For all these reasons, an addendum opinion is needed before the Board can adjudicate the claims. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the September 2021 VA examination. If that examiner is not available, the opinion should be provided by another qualified VA examiner. The examiner is asked to clarify whether bilateral pes planus is a distinct disorder, or is not a distinct disorder, from the bilateral plantar fasciitis with calcaneal heel spurs; if it is distinct, the examiner must list the symptomatology specific to the service-connected bilateral plantar fasciitis with calcaneal heel spurs. The examiner must also list the symptomatology that is attributable to the degenerative changes of the Veteran's forefeet and the symptomatology that is attributable to the bilateral hallux valgus. If the examiner is not able to separate the symptoms attributable to the service-connected bilateral plantar fasciitis with calcaneal heel spurs from the symptoms of the other distinct, diagnosed foot conditions, the examiner should so state. 2. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals C. L. WASSER Acting Veterans Law Judge Board of Veterans' Appeals John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.