Citation Nr: 21077325 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-40 614 DATE: December 29, 2021 REMANDED The appeal as to the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected left ankle sprain is remanded. The appeal as to the claim of entitlement to an initial evaluation in excess of 20 percent for service-connected bilateral plantar fasciitis is remanded. REASONS FOR REMAND The Veteran had active service in the United States Air Force from May 1988 to November 2009. His service was under honorable conditions. Among other commendations, the Veteran was awarded the Air Force Commendation Medal with two oak leaf clusters. The matters are on appeal from an October 2010 rating decision. In September 2018, the Board in pertinent part, denied the claim of entitlement to an initial rating in excess of 20 percent for service-connected bilateral plantar fasciitis, and in excess of 10 percent for service-connected left ankle sprain. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2020 memorandum decision, the Court vacated the Board's September 2018 decision denying an initial rating in excess of 20 percent for service-connected bilateral plantar fasciitis, and an initial rating in excess of 10 percent for service-connected left ankle sprain, and remanded the matters to the Board for readjudication. The matter was previously before the Board in April 2021. The claim has been returned to the Board for further appellate consideration. 1. Entitlement to an initial evaluation in excess of 10 percent for service-connected left ankle sprain. See argument Below at 2 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected bilateral plantar fasciitis. In its August 2020 memorandum decision, the Court vacated the Board's September 2018 decision and remanded the previously denied claims to the Board for reconsideration and additional evidentiary development. The Court found that the VA examinations the Board cited in support of its decision were inadequate. Regarding the increased rating claim for the Veteran's left ankle sprain disability, the Court noted that the Board relied on June 2013 and April 2017 VA examinations, which did not properly account for flares and functional loss on repeated use over time. The Court noted that the June 2013 VA examiner acknowledged the Veteran's reports of constant pain with flare-ups and found that these flare-ups make it difficult for him to walk, run, and step off an incline. However, in a subsequent section, the examiner indicated that the Veteran does not have any functional loss or functional impairment of the ankle. In this regard, despite noting the Veteran's assertions regarding these flares, the examiner did not obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of the flare from the Veteran, nor did she offer an opinion as to additional functional loss during these flares. See Sharp, 29 Vet. App. 26, 34 (2017). Furthermore, the April 2017 VA examiner did not portray the extent to which the Veteran's painful motion in his left ankle resulted in additional functional limitation with flare-ups, including estimation of any possible additional limitation, or adequately explain why such information could not be provided. During this examination, the VA examiner acknowledged the Veteran's reports of flare-ups and functional loss of his left ankle, and his assertions that his left ankle condition impairs his ability to walk or stand for prolonged periods. After recording the Veteran's range of motion findings, the examiner described the Veteran's range of motion with dorsiflexion and plantar flexion as abnormal. However, the Veteran was not evaluated following repetitive motion, and when asked whether pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability with repetitive motion, the examiner stated that he was unable to respond to this question without mere speculation. The examination was not conducted during a flare-up of pain, and the examiner declined to opine on additional functional loss during flare-ups because he was "unable to say without mere speculation." The examiner did not offer a flare opinion based on an estimate derived from information procured from relevant sources, including the lay statements the Veteran offered when described his functional loss. See Sharp, 29 Vet. App. at 34-35. The Court found the Board's reasons and bases, and the underlying medical examinations on which it relied, to be inadequate. With respect to the increased rating claim for the Veteran's bilateral plantar fasciitis disability, the Court found that the Board did not adequately explain why the Veteran was not entitled to a disability rating higher than 20 percent because the Board did not articulate what it considered "moderate," "moderately severe," or "severe" symptoms. The Court found that the Board did not provide an adequate statement of reasons or bases for finding that the Veteran's symptoms do not support a finding of severe symptoms as the Board did not consider the April 2017 x-ray findings when it rendered its decision and found "no other deformities or abnormalities" in the Veteran's feet. Based on the above, the Board remanded the case for new VA examinations for the Veteran's service-connected left ankle sprain and bilateral plantar fasciitis, with corresponding medical opinions. In September 2021, the Veteran underwent a VA ankle examination, during which he reported that he experienced constant dull and aching pain and swelling flares of the his left ankle. He further reported that he experienced sharp pain in the medial area, that resulted in instability, and a history of falls. The Veteran stated that his most recent fall happened three weeks ago. However, in a subsequent section, the examiner indicated that the Veteran does not have any instability, functional loss or functional impairment of the left ankle. In this regard, despite noting the Veteran's assertions regarding these flares, the examiner did not obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of the flare from the Veteran, nor did he offer an opinion as to additional functional loss during these flares. See Sharp, 29 Vet. App. 26, 34 (2017). In September 2021, the Veteran underwent a VA foot examination, during which he reported that he experienced constant dull and aching pain flares in the toes and medial aspect of the feet. He further reported that his pain impacted his stability, that resulted in a history of falls, and the most recent fall happened three weeks ago. The Veteran reported additional functional loss/impairment; specifically, he could not stand for "too long" on either foot. However, in a subsequent section, the examiner indicated that the Veteran does not have any functional loss or functional impairment of the right or left foot. Similarly, despite noting the Veteran's assertions regarding these flares, the examiner did not obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of the flare from the Veteran, nor did he offer an opinion as to additional functional loss during these flares. See Id. Accordingly, to ensure compliance with the directives of the April 2021 remand, the case is remanded for VA examinations to determine the current severity of the Veteran's service-connected left ankle and bilateral plantar fasciitis disabilities, that comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the VA examiner must elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records, as well as any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a new VA examination with an appropriate clinician to assess the present nature and severity of his left ankle disability. A complete copy of the claims file must be made available to the examiner. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Conduct range of motion testing of the Veteran's left ankle disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination. If pain on motion is observed, the VA examiner should indicate the point at which pain begins, where possible. (c.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his left ankle due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). (Continued on the next page) 3. Schedule the Veteran for a new VA examination with an appropriate clinician to assess the present nature and severity of his bilateral plantar fasciitis disability. A complete copy of the claims file must be made available to the examiner. All necessary tests and studies, to include X-rays and range of motion studies, should be completed, and all clinical findings reported in detail. After a thorough review of the medical and lay evidence of record, the examiner should opine as to the following: (a.) Conduct range of motion testing of the Veteran's bilateral plantar fasciitis disability, expressed in degrees in active motion, passive motion, weight-bearing, and non-weight-bearing (where applicable). The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts he is unable to perform range of motion testing due to pain. (b.) Render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination. If pain on motion is observed, the VA examiner should indicate the point at which pain begins, where possible. (c.) The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his bilateral plantar fasciitis due to pain or any of the other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 4. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.