Citation Nr: 21001160 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-15 336 DATE: January 7, 2021 REMANDED Entitlement to service connection for a foot disorder, to include pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2000 to May 2001. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2016 hearing. This issue was previously before the Board in March 2018 and April 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. Entitlement to service connection for a foot disorder, to include pes planus and plantar fasciitis, is remanded. Remand is required for substantial compliance with the April 2020 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The April 2020 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA and private treatment records (PTRs), and to obtain a VA medical opinion. In April 2020, the RO added another copy of the 2013 VA examination to the claims file, and as the Veteran asserted at the 2016 Board hearing that he receives all treatment through private providers, the Board concedes substantial compliance with this remand directive. A letter was sent to the Veteran in April 2020 asking him to identify and authorize for release any relevant PTRs. The Veteran did not reply to this letter. Remand is required for an addendum VA medical opinion. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Per the April 2020 Board remand, the Veteran underwent a new VA examination in August 2020, where the examiner found diagnoses of pes planus and plantar fasciitis, but provided negative nexus opinions. The examiner stated that pes planus is a congenital condition that likely caused his plantar fasciitis irrespective of his service, as it is a medically accepted predisposing factor. The examiner explained that the Veteran has had pes planus since birth, and it was diagnosed in February 1999 prior to entering service. The examiner addressed July 2000 service treatment records (STRs) noting that the Veteran was provided arch supports for bilateral foot pain. The examiner concluded that this was presumably for plantar fasciitis secondary to pes planus; however, this entry in the record actually does include a diagnosis of plantar fasciitis, and makes no mention of pes planus. It is unclear whether the examiner is opining that the plantar fasciitis diagnosed at that time was due to the pes planus, or that the examiner did not see the diagnosis in the record, and is speculating that is why the Veteran was provided with arch supports. The examiner next stated that the severe plantar fasciitis has gotten worse since the Veteran was discharged in 2009; however, the Veteran actually separated from active service in 2001. The examiner opined that if service was an aggravating factor, then the symptoms and condition should have improved after discharge and certainly after his surgery, but since they have not, he likely would have had severe plantar fasciitis regardless of service or physical activity. The examiner stated that it is common to see patients who develop severe plantar fasciitis who lead sedentary lifestyles, and those who have gained weight. It is unclear whether the examiner is stating that the Veteran’s claimed condition is due to a sedentary lifestyle, or simply that generally even those who perform no physical activity can develop plantar fasciitis. If the examiner is meaning the former, then this appears to be contradictory to the record, as the Veteran first complained of the condition while participating in boot camp training, which by its very nature is not sedentary. Further, the record demonstrates that the Veteran has worked a number of jobs that require him to spend many hours on his feet, including with the United States Postal Service. If the examiner is meaning the latter, then this does not adequately explain the etiology of the Veteran’s own disabilities, merely that of other hypothetical patients. The examiner then opined that the pes planus and plantar fasciitis clearly and unmistakably existed prior to service, and clearly and unmistakably were not aggravated beyond their natural progression by service. The examiner reasoned this by explaining the same unclear information as they did above regarding plantar fasciitis developing in people who lead sedentary lifestyles, and that pes planus is a predisposition to develop plantar fasciitis. This is not an adequate rationale, especially provided that the Veteran was first diagnosed with plantar fasciitis during active duty service, and no earlier diagnosis exists in the record. Moreover, although the examiner was correct to note that a diagnosis of pes planus was included on the Veteran’s February 1999 entrance examination, the examiner failed to address the notation on the same entrance examination that the pes planus was mild and asymptomatic. Finally, the April 2020 Board remand instructed the examiner to address the Veteran’s lay statements, and the 2013 VA medical opinion. Although the examiner acknowledged that they reviewed these records, they failed to actually address them in the opinion. Accordingly, remand is required for an addendum VA medical opinion. While on remand, the RO should again attempt to retrieve any outstanding PTRs. Although the Veteran did not reply to the April 2020 letter requesting that he identify and authorize for release any outstanding PTRs, as the Veteran asserted at his 2016 Board hearing that he receives all treatment for his bilateral foot disorder with private providers, he should be given another opportunity. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral foot disorder, to include pes planus and plantar fasciitis, from a VA examiner, other than the August 2020 examiner if possible. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that pes planus was aggravated during service, to include causing plantar fasciitis. (b) Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that plantar fasciitis had onset during service, or is otherwise related to active service. (c) The examiner must address the following: 1) the February 1999 entrance exam noting pes planus as mild and asymptomatic; 2) the July 2000 diagnosis of plantar fasciitis; 3) the December 2006 buddy statements; 4) the February 2013 Veteran statement; 5) the October 2013 VA medical opinion; 6) the November 2016 Board hearing testimony; and 7) the August 2020 VA medical opinion. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.