Citation Nr: 21021530 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-39 532 DATE: April 13, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for right ankle strain is remanded. Entitlement to an initial rating higher than 10 percent for left ankle arthritis is remanded. Entitlement to an increased rating higher than 30 percent for service-connected plantar fasciitis with pes planus and degenerative arthritis of the bilateral feet, with right foot talocalcanean fusion, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1989 to May 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma. This case was previously before the Board in July 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. In January 2021, the Board wrote the Veteran, and his representative, to inform them that the Veterans Law Judge who conducted his Board hearing in January 2018 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but no response to the Board’s offer has been received. As stated in the January 2021 notice, based on the lack of response to the notice the Board assumes the Veteran does not want another hearing and is proceeding to adjudicate the case. 1. Entitlement to an initial rating higher than 10 percent for right ankle strain is remanded. 2. Entitlement to an initial rating higher than 10 percent for left ankle arthritis is remanded. 3. Entitlement to an increased rating higher than 30 percent for service-connected plantar fasciitis with pes planus and degenerative arthritis of the During a November 2019 VA examination the Veteran reported receiving physical therapy for his feet and ankles with Valir medical. September 2019 VA treatment records indicate podiatry had recommended engaging in physical therapy, and the Veteran wanted to go through community care to receive physical therapy. The current evidence of record does not contain records of physical therapy for the Veteran’s ankles and feet. This evidence may be helpful in identifying the frequency and intensity of the Veteran’s symptoms as they relate to the relevant rating criteria. Because such records, if obtained, could bear on the outcome of the Veteran’s appeal, efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Also, in July 2018, the Board remanded this case to obtain updated VA examinations and provided specific directions in relation to functional loss during a flare up. The Veteran was afforded VA examinations of his feet and ankles in November 2019 and June 2020. The November 2019 VA examiner stated that, during a flare up, the Veteran’s ankles would experience pain, fatigue and lack of endurance “with flares with inhibiting further decrease in” range of motion. However, the examiner did not describe the functional loss in specific terms of additional degrees of limited motion as specified in the Board’s July 2018 remand order. Furthermore, the examiner subsequently stated the following: “Following further review of the Veteran's records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion during a flare up.” The examiner did not explain, however, why such factors resulted in there being “no rational basis to make a notation regarding any additional losses of function or motion during a flare up,” or how this statement was consistent with the examiner’s earlier notation that, during a flare up, the Veteran’s ankles would experience pain, fatigue and lack of endurance “with flares with inhibiting further decrease in” range of motion. In relation to the Veteran’s feet, the examiner stated that the Veteran suffered functional loss during flare ups described as not being able to stand or walk for extended periods. Further the examiner did not describe the frequency or duration of the Veteran’s flare ups of his ankles or feet. On June 2020 VA examination, the examiner stated that the Veteran did not report flare ups of the ankles. However, the Veteran had consistently reported flare ups in the past (see January 2015 and November 2019 VA examinations), and the examiner did reconcile the Veteran’s prior reports of flares with the current denial. Nor did the examiner provide a retrospective opinion related to reported flares prior to the examination. In relation to the Veteran’s feet, the examiner noted that the Veteran reported flare ups that were moderate but could be severe, precipitated by prolonged walking or standing, and alleviated by stretching and physical therapy. However, the examiner reported that there was no functional loss during flare ups or when the foot was used repeatedly over a period of time. The examiner did not reconcile how the Veteran’s experience of moderate to severe flare ups did not significantly limit functional ability during flare ups. Therefore, on remand, the Veteran should be afforded additional VA examinations of his ankles and feet to provide all necessary information to decide the appeal. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal; specifically, for any physical therapy received, to include from Valir medical. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination of his bilateral feet and ankles by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. With respect to the right and left ankle disabilities, the examiner should conduct range of motion testing (expressed in degrees) of each ankle on both active motion and passive motion and in both weight-bearing and non-weight-bearing (as appropriate). 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 so state and explain why. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with either ankle disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. With respect to the bilateral foot disabilities, the examiner should specifically note all manifestations of service-connected foot disability, as well as describe the frequency and severity of each manifestation. The examiner should also provide a current assessment of the severity of the bilateral pes planus, using the relevant rating criteria. Also, for each ankle and foot disability, if the Veteran is not examined during a flare up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should specifically elicit from the Veteran information about the severity, frequency, duration, characteristics, precipitating and alleviating factors, and extent of functional impairment during flare-ups of each disability. If it is not possible to provide a specific measurement, or opinions regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Complete, clearly-stated rationales for all answers, opinions, and conclusions reached must be provided. 4. After completing the above and any other necessary development, readjudicate the appeal. If any benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case. Andrew Mack Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.