Citation Nr: 21007925 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-00 495 DATE: February 11, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to March 2008. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in June 2008 by a Department of Veterans Affairs (VA) Regional Office (RO), which, as relevant, granted service connection for bilateral plantar fasciitis with a noncompensable rating, effective April 1, 2008. In November 2010, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded case for additional development in October 2011, November 2014, and January 2018. In February 2019, the Agency of Original Jurisdiction increased the rating for the Veteran’s bilateral plantar fasciitis to 10 percent, effective October 31, 2016. In September 2019, the Board awarded an initial 10 percent rating, but no higher, for the entire appeal period, i.e., as of April 1, 2008, the date of service connection. Thereafter, the Veteran appealed the Board’s denial of an initial rating in excess of 10 percent for bilateral plantar fasciitis to the United States Court of Appeals of Veterans Claims (Court). In September 2020, the Court granted the Secretary of VA’s and the Veteran’s (the parties’) August 2020 Joint Motion for Partial Remand (Joint Motion), which vacated the September 2019 Board decision to the extent that it denied an initial rating in excess of 10 percent for bilateral plantar fasciitis and remanded the matter for further consideration. Entitlement to an initial rating in excess of 10 percent for bilateral planter fasciitis. In the August 2020 Joint Motion, the parties found that the Board erred in the September 2019 decision by: (1) not addressing whether a separate rating is warranted for the Veteran’s bilateral foot disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5279, for bilateral metatarsalgia and (2) failing to support its finding that increased or separate ratings were not warranted for the Veteran’s bilateral plantar fasciitis under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries. In regard to the issue of whether a separate rating is warranted for the Veteran’s bilateral foot disorder under 38 C.F.R. § 4.71a, Diagnostic Code 5279 for bilateral metatarsalgia, the Board notes that, while December 2007 and October 2016 VA examinations found that he did not have metatarsalgia, a June 2009 private treatment record reflected a diagnosis of metatarsalgia of the left foot and a November 2011 VA examination reflected a diagnosis of bilateral metatarsalgia. Thus, the evidence appears to be in conflict as to whether the Veteran has such a diagnosis and, if so, whether such is part and parcel of his service-connected bilateral plantar fasciitis, or caused or aggravated by such disability. Consequently, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to assess the nature and severity of his bilateral plantar fasciitis. Furthermore, upon a review of the Veteran’s recent VA treatment records, it appears that there are outstanding private treatment records. In this regard, the most recent private treatment records on file are dated in 2008 and VA treatment records dated in 2019 and 2020 reflect that the Veteran has received treatment for his bilateral foot disability through Wright Podiatry. Thus, a remand is necessary in order to obtain such outstanding private treatment records. The matters are REMANDED for the following action: 1. Request that the Veteran submit or authorize VA to obtain his treatment records from Wright Podiatry. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Afford the Veteran an appropriate VA examination to determine the current nature severity of his service-connected bilateral plantar fasciitis. The record, to include a copy of this Remand, must be made available to the examiner. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran’s bilateral plantar fasciitis. The examiner should record the range of motion of the bilateral feet observed on clinical evaluation. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. It is also imperative that the examiner comment on the functional limitations caused by flare-ups, repetitive use, and repeated use over time. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups, on repetitive use, and on repeated use over time expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. If the Veteran endorses experiencing flare-ups of his feet, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner should offer an opinion as to whether any right and/or left foot disorders other than bilateral plantar fasciitis that have been present at any time since April 2008, even if such are asymptomatic or resolved, to include bilateral metatarsalgia diagnosed in June 2009 and November 2011, are at least as likely as not (i.e., a 50 percent probability or greater) part and parcel of the Veteran’s service-connected bilateral plantar fasciitis, or caused or aggravated by such disability. The examiner should also comment upon the functional impairment resulting from the Veteran’s bilateral plantar fasciitis. A rationale for all opinions offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.