Citation Nr: 21023967 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-40 614 DATE: April 21, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for residuals of left ankle sprain is remanded. Entitlement to an initial rating higher than 20 percent for bilateral plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to November 2009. This matter originally came to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board denied the Veteran’s claim of entitlement to an initial disability rating higher than 10 percent for residuals of left ankle sprain; granted an initial rating of 20 percent for bilateral plantar fasciitis and denied a rating higher than 20 percent for this disorder. The Veteran subsequently appealed the September 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued a Memorandum Decision that vacated the portion of the Board’s September 2018 decision denying an initial disability rating higher than 10 percent for residuals of left ankle sprain and a rating higher than 20 percent for plantar fasciitis, and remanded the matter to the Board for readjudication. 1. Entitlement to an initial rating higher than 10 percent for residuals of left ankle sprain is remanded. 2. Entitlement to an initial rating higher than 20 percent for bilateral plantar fasciitis is remanded. In its August 2020 memorandum decision, the Court vacated the Board's decision and remanded the previously denied claims to the Board for reconsideration and additional evidentiary development. CAVC found that the VA examinations the Board cited in support of the its decisions were inadequate. Regarding the Veteran's residuals of left ankle sprain claim, CAVC noted that the Board relied on a June 2013 and April 2017 VA examinations, which did not properly account for flares and functional loss on repeated use over time. CAVC noted that the June 2013 VA examiner acknowledged appellant's reports of constant pain with flare-ups and noted 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 examiner did not portray the extent to which the Veteran's painful motion in his 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 the left ankle, and the appellant asserted 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. CAVC found both the Board's reasons and bases and the underlying medical examinations on which it relied are inadequate. In regards to the Veteran’s claim of bilateral plantar fasciitis, CAVC found that the Board did not adequately explain why the Veteran was not entitled to a disability rating higher than 20 percent for his bilateral plantar fasciitis 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. The Board further observes that, as of February 7, 2021, VA has amended the Rating Schedule to include plantar fasciitis. Specifically, as of such date, plantar fasciitis is rated pursuant to Diagnostic Code 5269. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020), 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (to be codified at 38 C.F.R. § 4.71a , Diagnostic Code 5269).The rating schedule also amended Diagnostic Code 5271 concerning the ankle. On remand, the examiner should consider the revised regulations. Pursuant to the directives by the CAVC and after additional review, the Board has determined that new VA examinations for the Veteran’s service-connected left ankle sprain and bilateral plantar fasciitis, with corresponding medical opinions, is necessary. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left ankle and bilateral plantar fasciitis disabilities. The examination should comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner should attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. On remand, the AOJ should afford the Veteran additional VA examinations addressing the deficiencies noted by CAVC in its decision. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all identified outstanding relevant evidence with the Veterans claims file, the AOJ should schedule the Veteran for additional examinations by an appropriate clinician to determine the severity of his service-connected residuals of left ankle sprain during the period at issue to include during flare-ups. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral plantar fasciitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should explain the basis for any terms of severity that are used i.e. "mild", "moderate", "moderately severe", or "severe". The examiner should also be provided the medical evidence of record for review. The examiner must discuss the June 2013 and April 2017 x-ray report and November 2011 private treatment record. The examiner must also discuss and consider the revised rating criteria under Diagnostic Code 5269. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.