Citation Nr: 20021187 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-06 939 DATE: March 24, 2020 REMANDED Entitlement to service connection for bilateral plantar fasciitis, including as due to a service-connected disability, is remanded. Entitlement to service connection for bilateral pes planus, including as due to a service-connected disability, is remanded. Entitlement to service connection for left hip bursitis, including as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had a period of active duty for training (ACDUTRA) from September 1990 to January 1991. He also had active service from January 1991 to May 1991, October 1992 to March 1997, and from July 1997 to June 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded to the RO in August 2018 for further development. Unfortunately, as is explained below, another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for bilateral plantar fasciitis and for bilateral pes planus, each including as due to a service-connected disability. The Veteran contends that her bilateral plantar fasciitis and bilateral pes planus are due to her military service. She alternatively contends that a service-connected disability caused or aggravated (permanently worsened) her bilateral plantar fasciitis and bilateral pes planus. As an initial matter, the Board notes the Veteran’s service treatment records (STRs) are silent as to for any complaints, treatment, or diagnosis referable to plantar fasciitis or pes planus, with the exception of one October 1990 STR that notes the Veteran complained of “arch pain.” The Veteran’s August 1990 enlistment examination and subsequent January 1991, March 1991, and July 1994 examinations state the Veteran did not experience foot trouble, and a June 1997 medical examination specifically notes the Veteran’s “normal arch.” As pertinent to the Veteran’s bilateral plantar fasciitis claim, VA podiatry records show a complaint of “pain in the arch” in January 2004. Further, a July 2005 VA treatment record reveals a diagnosis of bilateral plantar fasciitis. A June 2009 VA treatment record notes the Veteran’s plantar fasciitis, and in November 2016, VA treatment records indicate the Veteran was ordered shoe inserts for such disorder. The Veteran was afforded a VA examination in December 2017 in order to determine the nature and etiology of her bilateral plantar fasciitis and her bilateral foot pes planus. At such time, the examiner stated there was no diagnosis of plantar fasciitis. In this regard, she noted that one clinician mentioned plantar fasciitis in the Veteran’s treatment records in 2009. However, the examiner stated that the Veteran’s current medical history was not consistent with plantar fasciitis. She further indicated that the mere mention of a consideration of a diagnosis does not constitute a medical impairment and pain was a purely subjective complaint. The examiner further explained that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a medical diagnosis or physical impairment. She further explained that, the Veteran received medical care routinely and the search of clinic notes revealed only one mention of plantar fasciitis in 2009, but there was no menton since such time. Therefore, the examiner concluded that, without a plantar fasciitis diagnosis, an etiological opinion was not warranted. The December 2017 VA examiner did not discuss VA treatment records concerning the Veteran’s bilateral plantar fasciitis. Thus, the Board found an addendum opinion was necessary in its August 2018 remand. Pursuant to the August 2018 remand, an addendum opinion was obtained in February 2019. The February 2019 VA examiner stated that the Veteran’s bilateral plantar fasciitis was less likely than not related to her military service to include as secondary to service-connected lumbar dextroscoliosis with spondylosis and degenerative disc disease with bilateral facet arthropathy, bilateral retropatellar pain syndrome, and right iliotibial band syndrome. In regards to direct service connection, the examiner noted the STRs were negative for any reference to plantar fasciitis, including the March 1991 and July 1994 Report of Medical Examinations, as were podiatry appointments in 2003 and 2004. The February 2019 VA examiner stated the first diagnosis of plantar fasciitis appeared in the record in November 2017. Therefore, this examiner opined that it was less likely than not her current bilateral plantar fasciitis was related to subjective pain reported 26 years earlier. In regards to secondary service connection, the February 2019 VA examiner stated that current medical literature does not recognize the Veteran’s particular service-connected disorders, or other condition of the back or knee, as a causative factor for developing bilateral plantar fasciitis of the feet. Therefore, the claimed condition of bilateral plantar fasciitis is less likely than not (less than 50 percent probability) proximately due to, or the result of, the Veteran’s military service or a service-connected disability. It appears that the February 2019 VA examiner’s opinion as to direct service connection is based on an inaccurate factual premise that the Veteran’s bilateral plantar fasciitis was not diagnosed until 2017; the record evidence shows instead that the Veteran was diagnosed as having plantar fasciitis in 2005. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that Board may reject medical opinion based on inaccurate factual basis). Therefore, and although the Board regrets any additional delay caused by this action, another remand is required to obtain an addendum opinion. As pertinent to the Veteran’s claim for bilateral pes planus, the December 2017 VA examiner opined that bilateral pes planus was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by her service-connected back and knee disabilities. It appears, however, that the December 2017 VA examiner provided a rationale concerning the Veteran’s left hip bursitis and not bilateral pes planus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Further, the December 2017 VA examiner did not provide an opinion as to whether the Veteran’s bilateral pes planus is due to her service-connected right iliotibial band syndrome or is related directly to active service. Thus, the Board found an addendum opinion was necessary in its August 2018 remand. Pursuant to the Board’s August 2018 remand, an addendum opinion was obtained in February 2019. The February 2019 VA examiner stated it was less likely than not the Veteran’s current mild pes planus was a result of her service. The rationale for this opinion was that the diagnosis in December 2017 was very remote from any reported pain in service. As to the question of secondary service-connection, the February 2019 VA examiner also opined that current medical literature did not recognize the Veteran’s particular service-connected conditions, to include her right iliotibial band syndrome, or any other condition of the back or knee as a causative factor for developing mild pes planus. The Board notes here that a review of the Veteran’s VA treatment records reveals a diagnosis of mild pes planus as early as June 2002. A May 2003 podiatry note states such condition would be assisted by an orthotic, and orthotic inserts were received by the Veteran in August 2003. Further, a June 2009 treatment record notes the Veteran’s flat feet. And, in an August 2011 treatment record, the Veteran complained of pain in the arches of both feet when walking. Thus, it appears that the February 2019 VA examiner’s opinion is based on an inaccurate factual premise that the Veteran’s pes planus was not diagnosed until 2017 when, in fact, it was diagnosed in 2002. See Reonal, 5 Vet. App. at 461. Therefore, and although the Board again regrets any additional delay caused by this action, another remand is required to obtain an addendum opinion regarding direct service connection. 3. Entitlement to service connection for left hip bursitis, including as due to a service-connected disability. The Veteran contends her left hip bursitis is due to active service. She alternatively contends that a service-connected disability caused or aggravated (permanently worsened) her left hip bursitis. The Veteran’s STRs indicate that, in January 2000, she complained of hip pain between her hip and leg with a grazing feeling and a loss of sensation in the left leg when walking. She attributed her hip pain to favoring her left knee, and the assessment was hip pain secondary to favoring the left knee. VA treatment records show the Veteran complained of left hip pain in March 2010, and at that time stated she had chronic left hip pain since 2000. Similarly, in May 2012 the Veteran reported having hip pain for years. The Veteran was afforded a VA examination in December 2013 in order to determine the nature and etiology of her left hip bursitis. At such time, she reported that her left hip bursitis began in the military and the condition had worsened over time. The examiner diagnosed the Veteran with a left hip strain and concluded it was less likely than not that the Veteran’s left hip condition was incurred in or was caused by an in-service injury, event, or illness. As rationale, the examiner explained that, although right hip pain was supported in the Veteran’s STRs (i.e., in September 2000), the left hip was not mentioned as painful or problematic within the STRs. The examiner did not note the January 2000 STR discussing left hip pain. In December 2017, the Veteran was afforded another VA examination for her claimed left hip bursitis. The December 2017 VA examiner concluded that the Veteran’s left hip bursitis was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by the Veteran’s service-connected back and knee disabilities. The rationale for this opinion was that such disabilities did not cause the Veteran to have any significant physical deformity, ankylosis of the major joints (i.e. ankle, knees or hips), septic arthritis, neurologic impairment, or severe gait dysfunction, and was not a causative factor nor did it aggravate her hip bursitis beyond its natural progression. The examiner further stated that current medical literature does not recognize osteoarthritis, pain syndrome or other condition of one joint, as a causative factor or aggravating beyond its natural progression to developing bursitis of another joint. The December 2017 VA examiner did not provide an opinion as to whether the Veteran’s left hip bursitis is secondary to her service-connected right iliotibial band syndrome. Thus, the Board found an addendum opinion was necessary in its August 2018 remand. Pursuant to the August 2018 remand, an addendum opinion was provided in February 2019. The February 2019 VA examiner stated the Veteran did not have a current diagnosis of bursitis. A review of the Veteran’s VA treatment records reveal a diagnosis of bursitis in March 2010 and October 2015. Specifically, she is diagnosed with left Greater Trochanteric Bursitis, with TFL/ITB (iliotibial band) Syndrome, a condition that would suggest her bursitis may be related to her service-connected right iliotibial band syndrome. Thus, the February 2019 VA examiner’s opinion is afforded little probative value as it is premised on the inaccurate factual premise that the Veteran lacked a current diagnosis. See Reonal, 5 Vet. App. at 461. Therefore, and although the Board again regrets any additional delay caused by this action, another remand is required to obtain an addendum opinion. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the August 2018 remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Send the claims file and a copy of this REMAND to an appropriate clinician other than the VA examiner who conducted the December 2017 and February 2019 examinations for an opinion concerning the nature and etiology of the Veteran’s bilateral plantar fasciitis and bilateral pes planus. Based on a review of the claims file, the clinician asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral planter fasciitis is related to active service. The examiner next is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral pes planus is related to active service. In offering these opinions, the examiner should consider the Veteran’s report that her bilateral foot pain had its onset in service and has continued to the present time. A complete rationale must be provided for any opinion(s) expressed. The clinician is asked not to review or rely upon the December 2017 and February 2019 VA examinations in preparing his or her own opinion(s). The clinician also is advised that the lack of contemporaneous records, alone, is insufficient rationale for a medical nexus opinion. 2. Send the claims file and a copy of this REMAND to an appropriate clinician other than the VA examiner who conducted the December 2017 and February 2019 examinations for an opinion concerning the nature and etiology of the Veteran’s left hip bursitis. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that left hip bursitis is related to active service or any incident of service, to include the Veteran’s January 2000 complaints of hip pain, which she attributed to favoring her left knee, with an assessment was with hip pain secondary to favoring the left knee. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected right iliotibial band syndrome caused or aggravated (permanently worsened) his left hip bursitis. A complete rationale must be provided for any opinion(s) expressed. The clinician is asked not to review or rely upon the December 2017 and February 2019 VA examinations in preparing his or her own opinion(s). The clinician also is advised that the lack of contemporaneous records, alone, is insufficient rationale for a medical nexus opinion. 3. Review the additional medical opinions, once obtained, to ensure substantial compliance with this REMAND. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.