Citation Nr: 25003395 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 20-15 824 DATE: March 11, 2025 REMANDED Entitlement to service connection for bilateral foot disabilities, including plantar fasciitis and pes planus, is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2011 to September 2016. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision. The Veteran submitted a Notice of Disagreement in April 2017, and following additional development, the Agency of Original Jurisdiction issued a Statement of the Case in March 2020. The Veteran submitted a VA Form 9 substantive appeal in April 2020, and these appeals were certified to the Board in April 2020. In November 2023, the Board issued a decision that, in relevant part, denied service connection for bilateral plantar fasciitis and denied a compensable rating for allergic rhinitis. The Veteran appealed the November 2023 decision to the Court of Appeals for Veterans Claims, and in October 2024, the Court granted a Joint Motion for Partial Remand that vacated the November 2023 decision and remanded the matter back to the Board for readjudication consistent with terms of the Joint Motion. The parties to the Joint Motion agreed the Board had failed to provide an adequate statement of reasons and bases by failing to explain why the examiners who had provided examinations for the Veteran's plantar fasciitis and allergic rhinitis were competent and qualified and had failed to explain why the Veteran's pes planus was not part of the scope of his claim for service connection for plantar fasciitis. Following the October 2024 Joint Motion, the Veteran and his representative were notified in a letter dated November 8, 2024 that they may submit additional argument and evidence in support of his claims within 90 days of the date of the letter. That 90-day period expired on February 6, 2025, and additional arguments were submitted in support of the appeals within the period allowed. 1. Entitlement to service connection for bilateral foot disabilities, including plantar fasciitis and pes planus. 2. Entitlement to a compensable rating for allergic rhinitis. The Veteran seeks service connection for bilateral foot disabilities, which he initially claimed as plantar fasciitis, and a compensable evaluation for his service-connected allergic rhinitis. First, the parties to the Joint Motion agreed that the Board had failed to adequately consider whether the Veteran's bilateral pes planus was not part of the scope of his original claim for service connection for bilateral plantar fasciitis. The parties to the Joint Motion noted that, when determining the scope of a claim, consideration must be given to the claimant's description of the claim, the symptoms that the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Veteran's June 2011 entrance examination shows he entered service with mild asymptomatic pes planus. The service treatment records also show he was prescribed orthopedic shoe inserts in September 2011 due to bilateral ankle pain. In January 2012, he complained of foot pain for the past 8 months, with only flat foot noted. He was assessed with plantar fasciitis in January 2012 following complaints of pain in both feet. The Veteran filed his claim for service connection for plantar fasciitis in May 2016. The May 2016 VA foot conditions examination was negative for plantar fasciitis. However, the examination did reveal the Veteran has bilateral pes planus, and that he experienced decreased arch height, marked deformity of both feet, marked pronation of both feet, and inward bowing of the Achilles tendon bilaterally. Considering the foregoing, the record reasonably raises the theory of service connection for bilateral pes planus. The Veteran sought service connection for plantar fasciitis after being diagnosed with the condition in January 2012. While he does not appear to currently have plantar fasciitis, the June 2016 examination did show he still has pes planus. The Board will characterize the Veteran's claim to encompass all potential bilateral foot disabilities, including bilateral pes planus. Next, the parties to the October 2024 Joint Motion agreed that the Board had erred by failing to adequately explain why a nurse practitioner was competent or qualified to provide the May 2016 VA foot conditions examination and the May 2016 VA rhinitis examination. VA applies a presumption of competency in reviewing the examinations and opinions of VA medical examiners. Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009). However, once a Veteran raises a challenge to the competency of a medical examiner, the presumption has no further effect, and VA must satisfy its burden of persuasion as to the examiner's qualifications. Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019). Once the Veteran raises the issue of an examiner's competence and qualifications, the Board must make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id.; 38 U.S.C. § 7104 (d). Furthermore, since the Veteran is obligated to raise the issue in the first instance, the Veteran must have the ability to secure from the VA the information necessary to raise the competency challenge. Once a request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. Francway, 940 F.3d at 1308-9. This is mandated by the VA's duty to assist. 38 U.S.C. § 5103A. Here, the same nurse practitioner provided both of the May 2016 VA examinations for foot conditions and rhinitis. In a January 2022 brief, the Veteran's representative argued that the Veteran would have been better served by being examined by a podiatrist and an otolaryngologist instead of a nurse practitioner. The Board construed this as a challenge to the May 2016 examiner's competence. In the November 2023 decision, determined the Veteran had not raised specific objections to the examiner's qualifications and found the May 2016 examiner was competent. The parties to the October 2024 Joint Motion agreed the Board had failed adequately support this finding. Following the Joint Motion, in November 2024, the Veteran's representative submitted an excerpt of one of the Veteran's appellate briefs that had been filed to the Court of Veterans' Appeals. In the brief, the Veteran's attorney at the Court requested the Board consider whether a remand was required to provide the Veteran with a copy of the May 2016 examiner's curriculum vitae. While the Veteran had not previously requested a copy of any of the May 2016 examiner's qualifications, the appellate brief raises the issue. The Board finds that the Veteran has raised a competency challenge and requested a copy of the May 2016 examiner's curriculum vitae and information regarding the examiner's qualifications and competence. As noted above, absent unusual circumstances that are not present in this mater, a Veteran has the right to the curriculum vitae and other information about qualifications of a medical examiner once requested. As such, and before the Board can reach the issue of the May 2016 examiner's competence, the Veteran is entitled to the May 2016 examiner's curriculum vitae. Under Francway, a remand is necessary for VA to provide the Veteran with the May 2016 examiner's curriculum vitae before the Board may properly readjudicate the claim for service connection for bilateral foot disabilities and the claim for a compensable rating for his allergic rhinitis. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative copies of the curriculum vitae for the examiner who conducted the May 2016 VA foot conditions and rhinitis examinations. The examiner who performed both examinations was J.H., MSN, FNP-C. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the Veteran's claims for service connection for bilateral foot disabilities and for a compensable rating for allergic rhinitis. If the claims are not granted in full, provide the Veteran and his representative a Supplemental Statement of the Case and an opportunity to respond. If necessary, return the claims to the Board for further appellate review. SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Morse, Stenson 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.