Citation Nr: 21007088 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-37 517 DATE: February 8, 2021 REMANDED Entitlement to a rating in excess of 10 percent for bilateral pes cavus is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis with degenerative arthritis prior to June 17, 2019, in excess of 30 percent prior to February 11, 2020, and in excess of 50 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from October 1963 to August 1967. These matters are before the Board of Veterans’ Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board finds a brief recitation of the procedural history of this case necessary in order to clarify the issues on appeal. In a September 2016 decision, the Board denied the Veteran’s claim for entitlement to a rating in excess of 10 percent for bilateral pes cavus. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 memorandum decision, the Court vacated and remanded the Board’s September 2016 decision for readjudication. Because the Board’s September 2016 decision denying entitlement to an increased rating for bilateral pes cavus has been vacated and remanded by the Court, that issue has been returned to the Board for appellate consideration. In the memorandum decision, the Court found that the Board erred in its decision when it failed to provide adequate reasons or bases for its determination that the issue of entitlement to an increased rating for service-connected bilateral plantar fasciitis with degenerative arthritis was not on appeal. In the subsequent August 2018 remand, the Board accepted jurisdiction over this issue and it is therefore before the Board on appeal. Subsequent to the February 2018 memorandum decision, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis with degenerative arthritis for further evidentiary development consistent with the directives outlined by the Court. In a September 2019 rating decision, the RO awarded the Veteran an increased, 30 percent rating for bilateral plantar fasciitis with degenerative arthritis effective June 17, 2019. The Veteran continues to appeal for a higher rating. AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum rating allowed by law). In February 2020, the Board remanded the above claim once again for further development. In a July 2020 rating decision, the RO awarded the Veteran an increased, 50 percent rating for bilateral plantar fasciitis with degenerative arthritis effective February 11, 2020. A 50 percent rating is the maximum rating available under the applicable rating criteria. See 38 C.F.R. § 4.71a. Unfortunately, the Veteran’s appeal must be remanded once again for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 1. Entitlement to a rating in excess of 10 percent for bilateral pes cavus is remanded. 2. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis with degenerative arthritis prior to June 17, 2019, in excess of 30 percent prior to February 11, 2020, and in excess of 50 percent thereafter is remanded. As an initial matter, the Board notes that the RO last issued a supplemental statement of the case (SSOC) addressing the issue of entitlement to a rating in excess of 10 percent for bilateral pes cavus in November 2014. Since then, medical evidence pertinent to the claim has been added to the claims file, to include June 2019, February 2020, and September 2020 VA foot conditions examination reports. However, the RO has not readjudicated the claim in light of this additional evidence as required by 38 C.F.R. §§ 19.31, 19.37. As such, remand is required for readjudication and, if necessary, issuance of a SSOC as to the increased rating claim for bilateral pes cavus. Notwithstanding the need for an SSOC, the Board further finds that the Veteran’s increased rating claims must be remanded to obtain an addendum VA medical opinion as the available medical evidence of record is insufficient to allow the Board to properly rate the Veteran’s service-connected bilateral foot disabilities. In this regard, the Board notes that since August 2009, the duration of the appeal, the Veteran has undergone five VA foot conditions examinations and has been diagnosed with several disabilities of the feet, to include bilateral pes cavus, bilateral plantar fasciitis, bilateral pes planus, bilateral arthritis, and hallux valgus of the left foot. The Veteran is service-connected for all of the above conditions except for bilateral pes planus. Of particular concern to the Board are the December 2009 and May 2014 VA examination reports. Upon review of the December 2009 examination report, the Board notes that although both bilateral pes cavus and bilateral plantar fasciitis were diagnosed on examination, the examiner failed to differentiate which symptoms and functional impairments noted on examination are attributable to which disability. Likewise, at the May 2014 VA examination, the VA examiner diagnosed the Veteran with both bilateral pes planus and bilateral plantar fasciitis. Plantar fasciitis is commonly rated analogous to pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276. The examiner filled out the section pertaining to pes planus without differentiating which symptoms are related to plantar fasciitis, as opposed to nonservice-connected pes planus. Similarly, when assessing additional factors of disability, such as periods of flare-ups, extent of functional loss, and resulting functional impairment, the examiner did not attempt to explain which foot disability (or disabilities) causes this additional impairment. As such, the Board finds that the December 2009 and May 2014 VA examination reports are inadequate to allow the Board to properly adjudicate the Veteran’s claims for increased ratings for bilateral pes cavus and plantar fasciitis with degenerative arthritis because it is not clear which of the Veteran’s symptoms and impairments are due to which disability of the feet. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not qualified to make its own medical determinations and must rely on qualified medical expertise). On remand, an addendum medical opinion must be obtained that is adequate for the Board to make an informed decision on the Veteran’s claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Accordingly, the matters are REMANDED for the following actions: 1. Forward the Veteran’s claims file to a VA physician of appropriate expertise (i.e. podiatry or orthopedics) to review the pertinent medical evidence and provide an addendum medical opinion. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. The examiner is specifically asked to review the December 2009 and May 2014 VA foot conditions examination reports, as well as any other pertinent contemporaneous evidence of record, including lay statements and VA treatment records. Thereafter, the examiner should attempt to ascertain, to the extent possible, which of the symptoms and functional impairments found on examination are attributed to the Veteran’s service-connected disabilities of bilateral pes cavus and bilateral plantar fasciitis with degenerative arthritis. If any symptoms or impairment can be attributed to nonservice-connected foot disabilities (i.e. bilateral pes planus) such should be clearly stated. If it is not possible to differentiate symptoms or the symptoms overlap, this should also be clearly explained. The examiner must provide a complete rationale for any opinions offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s record, when necessary, to support the conclusion reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. (Continued on the next page)   2. Then, readjudicate the issues on appeal, with specific consideration of the evidence associated with the claims file since the issuance of the November 2014 SSOC. If any benefit sought on appeal remains denied, issue an SSOC and allow the appropriate time for response. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, Associate 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.