Citation Nr: 1805446 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-36 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bilateral plantar fasciitis. 2. Entitlement to service connection for a left ankle disability 3. Entitlement to service connection for a lumbar spine disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C.Biggins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to June 1983, November 1986 to February 1987, and with additional service in the Army National Guard from July 1986 to March 1996. This matter comes from the Board of Veterans' Appeals (Board) on appeal from September 2009 (denying service connection for plantar fasciitis), July 2010 (denying service connection for a bilateral ankle disability), and January 2013 (denying service connection for a lumbar spine strain) rating decisions issued by the Indianapolis, Indiana, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a March 2015 Board videoconference hearing and a transcript of this hearing is of record. The appeal was most recently before the Board in January 2016 at which time it was remanded for additional development. However, the requested development was not substantially complied with and thus the claim is not ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). In, September 2016 the Veteran's then-representative submitted a request that the Veteran's case be advanced on the docket due to the financial hardship. The motion to advance the case on the docket is granted. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's claims were most recently before the Board in January 2016 at which time they were remanded to obtain new VA examinations and opinions regarding the etiology of his bilateral plantar fasciitis and left ankle disability. In response to the Board remand July 2016 examinations and opinions were obtained. The July 2016 examiner concluded the Veteran's bilateral planter fasciitis was not etiologically related to his first period of active service. The examiner noted in June 1983 the Veteran complained of numbness in his feet but that no diagnosis was made. The examiner concluded that the Veteran's reported foot disability must have resolved because no other documentation was found which noted treatment for this disability. The examiner also concluded the Veteran's plantar fasciitis was not etiologically related to his second period of service. The examiner noted an October 1986 note from the Veteran's private treatment provider indicating the Veteran was under his care for plantar fasciitis but that he was released for active duty without restriction. The examiner indicated that this indicated the Veteran's plantar fasciitis had resolved. The examiner also referenced medical literature which stated plantar fasciitis normally resolves within one year. The Board finds the July 2016 opinion to be inadequate. The examiner seemingly based her conclusion that the Veteran's reported foot had resolved based on the absence of service treatment records (STRs) noting further treatment for a foot disability. However, the Board notes it is impermissible for a VA examiner to rely on the absence of medical records corroborating the continuity of a condition. In addition, the examiner indicated she interpreted the October 1986 private treatment note releasing the Veteran to active duty to mean the Veteran's plantar fasciitis had resolved. However, the note did not indicate the Veteran's plantar fasciitis had resolved, just that he was able to return to active duty because he was asymptomatic. The Veteran submitted a November 2017 statement indicating he did not seek further treatment for his plantar fasciitis because he was told there was nothing that could be done to treat it. Thus indicating the October 1986 private treatment note could be indicating that the Veteran was released to active duty because there was no further treatment available. In addition the examiner did not address a June 2016 private treatment record indicating the Veteran's plantar fasciitis had been aggravated by his active service. As such, an addendum opinion must be obtained on remand. The July 2016 examiner concluded the Veteran's left ankle disability was not etiologically related to his first period of service. The examiner noted the Veteran's in-service left ankle sprain in May 1983 and concluded this sprain had resolved because the Veteran did not seek treatment for it again. The examiner noted the Veteran's current x-ray showed mild arthritis in the left ankle which was common for his age. As to the Veteran's second period of service the examiner concluded the Veteran did not have a preexisting left ankle disability which was aggravated by his active service because his May 1983 ankle sprain had resolved. The examiner added that the Veteran's left ankle arthritis is not otherwise etiologically related to his active service because there was no chronic ankle pain noted in either period of active service. The Board finds the July 2016 opinion to be inadequate. The examiner seemingly based her conclusion that the Veteran's May 1983 ankle sprain had resolved based on the absence of service treatment records (STRs) noting further treatment for a foot disability. However, as noted above it is impermissible for a VA examiner to rely solely on the absence of medical records corroborating the continuity of a condition. As such, an addendum opinion must be obtained on remand. As to the Veteran's claim of entitlement to service connection for a lumbar spine disability in an August 2016 deferred rating decision the RO ordered a lumbar spine VA examination and opinion. However, it does not appear that this examination has been scheduled yet. As such, the examination and opinion must be obtained on remand. Moreover, the Veteran has provided some private treatment records from CPN Podiatry Care and Dr. J.B. at the American Health Network. However, his claims file does not appear to contain the entirety of the treatment records from these private providers. As such, an attempt should be made to obtain these records on remand. In addition, it appears the Veteran continues to receive treatment at a VA medical center. Therefore, any and all outstanding VA treatment records must be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain and associate with the claims file any and all outstanding VA treatment records. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for his bilateral plantar fasciitis, left ankle disability, or lumbar spine disability since service. After securing the necessary release, take all appropriate action to obtain these records, including records from CPN Podiatry Care and Dr. J.B. at the American Health Network. Inform the Veteran and provide him with the chance to submit additional records. 3. After the completion of steps one and two the AOJ must contact the VA examiner who examined the Veteran in July 2016 in connection with his claim for service-connection for bilateral plantar fasciitis and request an addendum opinion. The claims file should be made available to and reviewed by the examiner. The examiner must provide an opinion as to the following: a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that any currently diagnosed plantar fasciitis is etiologically related to the Veteran's first period of active service from May 1983 to June 1983? The examiner must consider and discuss as necessary the following: i. The Veteran's November 2017 statement indicating he did not seek further treatment for his plantar fasciitis because his private treatment provider and the military told him there was nothing that could be done to treat it; and ii. A June 2016 private treatment record indicating the Veteran's plantar fasciitis had been aggravated by his active duty. b) With regard to the Veteran's second period of service, November 1986 to February 1987, does the evidence of record clearly and unmistakably show that the Veteran had plantar fasciitis that existed prior to his entry onto active duty? c) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting plantar fasciitis was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner must consider and discuss as necessary the following: i. The Veteran's November 2017 statement indicating he did not seek further treatment for his plantar fasciitis because his private treatment provider and the military told him there was nothing that could be done to treat it; and ii. A June 2016 private treatment record indicating the Veteran's plantar fasciitis had been aggravated by his active duty. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. d) If the answer to either (b) or (c) is no, is it at least as likely as not that any diagnosed plantar fasciitis is otherwise etiologically related to the Veteran's second period of active service November 1986 to February 1987. The examiner should consider and discuss as necessary the following: i. The Veteran's November 2017 statement indicating he did not seek further treatment for his plantar fasciitis because his private treatment provider and the military told him there was nothing that could be done to treat it; and ii. A June 2016 private treatment record indicating the Veteran's plantar fasciitis had been aggravated by his active duty. iii. The Veteran's March 2015 Hearing testimony that he injured his ankle during exercises in basic training in both his first or second periods of service. The examiner is advised it is impermissible to rely solely on the absence of medical records corroborating the continuity of a condition. If the July 2016 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. 4. After the completion of steps one and two the AOJ must contact the VA examiner who examined the Veteran in July 2016 in connection with his claim for service-connection for a left ankle disability and request an addendum opinion. The claims file should be made available to and reviewed by the examiner. The examiner must provide an opinion as to the following: a) Is it at least as likely as not (within the realm of 50 percent probability or greater) that any currently diagnosed left ankle disability is etiologically related to the Veteran's first period of active service from May 1983 to June 1983? The examiner should consider and discuss as necessary the Veteran's June 1983 service record showing a strain of the left ankle. b) With regard to the Veteran's second period of service, November 1986 to February 1987, does the evidence of record clearly and unmistakably show that the Veteran had a left ankle disability that existed prior to his entry onto active duty? The examiner should consider and discuss as necessary the Veteran's May1983 STR showing a strain of the left ankle. c) If the answer is yes, does the evidence of record clearly and unmistakably show that the preexisting left ankle disability was not aggravated by service or that any increase in disability was due to the natural progression of the disability? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression. d) If the answer to either (b) or (c) is no, is it at least as likely as not that any diagnosed left ankle disability is otherwise etiologically related to the Veteran's second period of active service? The examiner is advised it is impermissible to rely solely on the absence of medical records corroborating the continuity of a condition. If the July 2016 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. 5. As requested in the August 2016 deferred rating decision schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any lumbar spine disability. Copies of all pertinent records should be forwarded to the examiner for review. All indicated testing should be carried out. 6. After completing the above, and any other development deemed necessary, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).