Citation Nr: 21008709 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-28 946 DATE: February 17, 2021 REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to an increased disability evaluation for right foot plantar fasciitis, initially rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for left foot plantar fasciitis, initially rated as 10 percent disabling, is remanded. Entitlement to an increased disability evaluation for sinusitis, initially rated as noncompensable, is remanded. Entitlement to an increased disability evaluation for pseudofolliculitis, initially rated as noncompensable, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from March 1988 to September 2006. He also had active service for 3 years, 6 months, and 19 days prior to his March 1988 to September 2006 period of service. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a June 2014 rating decision, the Veteran was granted an increased, 10 percent disability rating, per foot, for his service-connected right foot plantar fasciitis and left foot plantar fasciitis, effective October 1, 2006. As the Veteran has not been granted the maximum benefit allowed for his service-connected right foot plantar fasciitis and left foot plantar fasciitis, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2014, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. A supplemental statement of the case was most recently issued in June 2015. The case has since been returned to the Board for appellate review. 1. Entitlement to service connection for a right ankle disorder is remanded. The Board observes that the Veteran’s DD Form 214 indicates that the Veteran had 3 years, 6 months, and 19 days of active service prior to his March 1988 to September 2006 period of service. However, the Veteran’s claims file does not contain the Veteran’s service personnel records, to include a DD Form 214 or other confirmation of the dates of his service, for this period of service. Likewise, the Veteran’s claims file does not contain his service treatment records for his first period of service. Moreover, the Veteran’s claims file does not reflect that VA has made an attempt to obtain these records, despite their potential relevance to the Veteran’s claim for service connection of a right ankle disorder. As such, the AOJ must search for additional records at National Archives and Records Administration (NARA), U.S. Army and Joint Services Records Research Center (JSRRC), National Personnel Records Center (NPRC), or the Defense Personnel Records Imaging System (DPRIS). Additionally, with respect to the Veteran’s claim for service connection for a right ankle disorder, the Board observes that the Veteran was afforded a VA general medical examination in January 2007. The January 2007 VA examination report indicated that the Veteran had a history of a pre-service right ankle fracture with surgical correction resulting in residual scars on the lateral and medial sides of ankle and slightly decreased ankle flexion. However, the VA examiner did not address the Veteran’s current complaints regarding his right ankle or provide a physical evaluation of his right ankle other than range of motion testing; the Veteran has consistently asserted that his right ankle disorder was aggravated during service. Moreover, the VA examiner did not provide a rationale for his finding that the Veteran’s right ankle fracture was not aggravated by his military service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Accordingly, the Board finds that the Veteran should be afforded a new VA examination regarding the claim for service connection of a right ankle disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). 2. Entitlement to an increased disability evaluation for right foot plantar fasciitis, initially rated as 10 percent disabling, is remanded. 3. Entitlement to an increased disability evaluation for left foot plantar fasciitis, initially rated as 10 percent disabling, is remanded. 4. Entitlement to an increased disability evaluation for sinusitis, initially rated as noncompensable, is remanded. 5. Entitlement to an increased disability evaluation for pseudofolliculitis, initially rated as noncompensable, is remanded. The Veteran asserts that his service-connected right foot plantar fasciitis, left foot plantar fasciitis, sinusitis, and pseudofolliculitis are more severe than presently evaluated. The Board observes that Veteran was most recently afforded VA examinations for his sinusitis and pseudofolliculitis in August 2014, and that the Veteran has not been afforded a VA examination in connection with his right foot plantar fasciitis and left foot plantar fasciitis since January 2007. As such, the Veteran must be provided with examinations which consider the current severity of his service-connected disabilities on appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992). All available VA treatment records for the claims on appeal for the rating period since October 2014 should be associated with the Veteran’s claims file. The matters are REMANDED for the following action: 1. Request any additional available service personnel or other official records from NARA, the NPRC, and the Defense Personnel Records Imaging System. If no additional service records or unit histories can be found, or if they have been destroyed, ask for specific written confirmation of that fact. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed disabilities on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 3. Associate with the claims file the Veteran’s VA treatment records related to the claims on appeal from any VA facility identified by a review of the record, since October 2014. 4. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected sinusitis. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 5. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected pseudofolliculitis. The claims file should be made available to the examiner for review in connection with the examination. Any indications that the Veteran’s complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. The VA examiner should provide a complete rationale for any opinions provided. 6. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran’s service-connected right and left foot plantar fasciitis. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected right and left foot plantar fasciitis on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the right and left feet in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing The VA examiner is requested to provide an estimate as to functional loss due to flare-ups of the Veteran’s service-connected right and left foot plantar fasciitis. 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. The VA examiner should provide a complete rationale for any opinions provided. 7. After any additional records are associated with the claims file, the RO should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s claimed right ankle disorder. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should then render an opinion as to whether the Veteran has a right ankle disorder that is at least as likely as not (50 percent probability or more) related to any event, illness, or injury during service. If the Veteran has a current right ankle disorder that is not related to his military service, the VA examiner should provide an opinion as to whether it is at least as likely as not that his current right ankle disorder was aggravated by any events, injuries, or illnesses during the Veteran’s active service. The examiner is advised that the Veteran is competent to report symptoms, including continuity of symptoms, treatment, and diagnoses and the examiner must take into account, along with the other evidence of record, the Veteran’s statements in formulating the requested opinions. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 8. After completing all indicated development, the RO should readjudicate the claims on appeal, in light of all of the evidence of record. If the claims remain denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The case should be returned to the Board after compliance with requisite appellate procedures. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.