08-16 788
08-16 788
| Board of Vet. App. | Apr 28, 2017Background
- Veteran served Aug 1978–Aug 2005 and is service-connected for bilateral plantar fasciitis (10% each foot) since Sept 1, 2005.
- Multiple ancillary foot conditions were earlier recognized/rated (e.g., scar with 10%, hammertoes noncompensable); Veteran did not dispute separate ratings.
- Court vacated and remanded April 2015 Board denial of ratings in excess of 10% for bilateral plantar fasciitis pursuant to a Joint Motion; the 10% grants remained intact.
- Board remanded in Aug 2016 for further development requiring ROM testing per Correia (active/passive; weight-bearing/non-weight-bearing) and clarification on appropriate diagnostic codes (e.g., DC 5278, 5276, 5003 vs. 5284).
- A December 2016 VA-contracted exam failed to follow remand directives: it did not document active/passive or weight-bearing ROM findings, left hammertoes assessment incomplete, and raised new findings (pes cavus, DJD) affecting diagnostic-code applicability.
- Board concluded the December 2016 exam was noncompliant with Stegall/Corriea directives and remanded for a new VA exam and completion of the DBQ with specific ROM testing and hammertoe assessment; appellant may submit additional evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to initial ratings >10% for right foot plantar fasciitis and related conditions | Veteran contends symptoms/severity warrant ratings above 10% and diagnostic-code reassignment (e.g., DC 5278/5276/5003) based on December 2016 findings | VA/Board relied on existing 10% ratings but argues further development/exam necessary to apply correct diagnostic code and rate severity | Remanded: grant of 10% unchanged; exam inadequate so new VA exam ordered to assess ROM (active/passive; weight-bearing/non-weight-bearing), hammertoes, and to clarify diagnostic-code applicability |
| Whether the December 2016 VA-contracted examination complied with prior remand directives | Veteran’s representative argues the exam supports different diagnostic codes and higher ratings | VA exam did not document required ROM testing or fully assess hammertoes; thus it failed to comply with remand instructions | Held noncompliant with remand; new examination required to ensure Stegall compliance |
| Whether Diagnostic Code 5284 remains appropriate given new exam findings (pes cavus, DJD) | Veteran seeks rating under specific foot DCs (5278, 5276) or arthritis DC 5003 rather than DC 5284 | VA noted new findings but lacked sufficient objective ROM and joint-specific testing to apply a specific DC | Remanded for clarification and testing to determine correct diagnostic code(s) |
| Whether the Board satisfied obligation to ensure compliance with prior remand and Correia requirements | Veteran asserts Board must enforce prior remand requirements | Board recognized examiner did not perform/record required testing per Correia; Stegall requires compliance | Board ordered remand and directed a new compliant examination |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (1998) (remand creates a right to compliance; VA must follow remand directives)
- Correia v. McDonald, 28 Vet. App. 158 (2016) (requirement to record active and passive ROM and weight-bearing status when evaluating joints for pain)
- Copeland v. McDonald, 27 Vet. App. 333 (2015) (if a condition fits a specific diagnostic code, the generic DC for "other" is inapplicable)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence after remand)
- Manlincon v. West, 12 Vet. App. 238 (1999) (procedural note regarding deferral of issues being adjudicated by AOJ)