Citation Nr: 21001744 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-03 214 DATE: January 11, 2021 REMANDED Service connection for a left arm condition (other than left carpal tunnel syndrome (CTS)). Service connection for a right arm condition. Service connection for plantar fasciitis. REASONS FOR REMAND The Veteran served on active duty from February 1989 to November 2012. The case is on appeal from a February 2014 rating decision. In September 2018, the Veteran testified at a Board hearing. The case was last before the Board in June 2019. At that time, the Board granted service connection for degenerative disc disease (DDD) of the lumbosacral spine, a disability manifested by neck pain, and left-hand CTS. The Board denied service connection for a left hip disability and shingles. Additionally, the Board remanded the claims of service connection for a left arm disability (other than left CTS), a right arm disability, and bilateral plantar fasciitis for further development. 1. Service connection for a left arm condition (other than left CTS). 2. Service connection for a right arm condition. The Board finds there was not substantial compliance with the Board’s June 2019 remand directives where the Board directed the RO to obtain a new VA medical opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observed that the earlier VA examination did not consider the Veteran’s competent reports of experiencing in-service events and onset of symptoms, along with post-service indications of bilateral arm disability. The Board also noted that, given the Veteran’s service in Southwest Asia from April 2006 to December 2006 and from March 2008 to October 2008, that the provisions of 38C.F.R.§3.317 are potentially for application as it pertains to his bilateral arm pain. Upon remand, a new VA medical opinion was provided in November 2019. While the VA examiner acknowledged the Veteran’s lay statements by listing statements regarding onset of arm pain in the appropriate section during the examination, it is unclear from the rationale provided whether the examiner actually considered the Veteran’s statements made during the examination and provided elsewhere in the file, including the Veteran’s lay testimony from the September 2018 Board hearing. Rather, the examiner proceeded by relying on a lack of documented diagnoses, complaints, or continuous treatment since the last claim was denied in 2014, without explaining why documentation was needed. Additionally, the examiner cited to the Veteran’s employment doing construction work and handling heavy tools and equipment without explaining its importance or how it demonstrates the Veteran does not experience arm pain. Further, despite the Veteran stating during the examination that over the years, his hand pain would radiate to his elbow, that he continues to experience bilateral hand pain, and that pain radiates from the tip of his hands to his biceps and elbows, the examiner provided there was no additional supporting evidence of disability. In short, the November 2019 examiner, relied on an absence of documented diagnoses, complaints, and treatment post-service without explaining why the Veteran’s lay statements and service treatment records (STRs) indicating symptoms beginning during service do or do not support a nexus. Additionally, the examiner was instructed to opine whether the Veteran’s disability pattern manifested by bilateral arm pain is consistent with the requirements of 38 C.F.R. §3.317. However, an opinion was not provided. Without addressing these lay statements and without an opinion addressing the requirements of 38 C.F.R. §3.317, the Board cannot understand the relationship between the Veteran’s ongoing complaints since service and his current bilateral arm pain. These were bases for the Board’s last remand, so this leaves the November 2019 VA opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Accordingly, a new opinion is warranted. 3. Service connection for plantar fasciitis. The Board finds there was not substantial compliance with the Board’s June 2019 remand directives where the Board directed the RO to obtain a new VA medical opinion. Stegall, 11 Vet. App. at 271. The Board observed no opinion or observations were made regarding the Veteran’s reports of pain, and, to what extent the reported pain impacts the Veteran’s functionality. Additionally, it was noted the VA examiner’s observations may have been based on inaccurate information, as STRs show that the open plantar fasciotomy was performed in January 2011, and on his left, rather than his right, foot. Furthermore, STRs account for complaints of worsening chronic feet pain after the 2011 fasciotomy. Upon remand, a new medical opinion was provided in November 2019. Despite finding pain on weight-bearing, interference with standing bilaterally, and noting the Veteran’s all-day weight-bearing activities at his construction job cause pain in his feet and aggravate his already existing foot pain and plantar fasciitis, the examiner found the Veteran’s pain has no functional impact. Additionally, the examiner appears to have relied on the same erroneous reading of the STRs as the previous examiner, as she stated in her opinion that “there was documentation of plantar fasciitis with right foot fasciotomy done in 2009 which was resolved but left foot was normal.” The examiner further provided the Veteran has continued to work jobs requiring prolonged boot wearing, which medical literature supports is a risk factor for plantar fasciitis. As a result, the examiner found there is not enough evidence to state that the Veteran’s plantar fasciitis is a continuation of the foot condition related to his in-service bilateral foot complaints. She concluded the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In short, the November 2019 examiner relied on an absence of documentation without explaining why STRs and the Veteran’s lay statements indicating symptoms and treatment beginning during service and continuing post-service do or do not support a nexus. Additionally, the examiner did not properly address the Veteran’s pain as it relates to functionality and she misread the STRs, as with the prior examiner. Without a proper opinion, the Board cannot understand the relationship between the Veteran’s ongoing complaints since service and his current foot condition. These were the bases for the Board’s last remand, so this leaves the November 2019 VA opinion inadequate. McKinney, 28 Vet. App. at 30. Accordingly, a new opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional to determine the nature and etiology of all bilateral arm disorders experienced by the Veteran. Any clinically indicated diagnostic testing should be performed. Based on the examination results and after review of the entire claims file, the examiner is asked to address each of the following: (a.) The examiner should first determine whether the Veteran has a current diagnosis manifested by bilateral arm pain (other than left CTS that is now already service connected), which may include pain alone that rises to the level of functional impairment. In doing so, the examiner should comment on whether the symptoms of the claimed condition (bilateral arm pain) are attributable to a known clinical diagnosis. If only pain is diagnosed, but there is no functional impairment present, it should be explained why this is so. (b.) The examiner should then provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified disorder manifested by bilateral arm pain had its onset during, or is otherwise related to, service. (c.) The examiner should also provide an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any identified disorder manifested by bilateral arm pain is proximately caused, or aggravated, by service-connected left CTS. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. (d.) If not, the examiner should comment on whether the Veteran’s disability pattern manifested by bilateral arm pain is consistent with: (1) a condition of unknown etiology and pathophysiology, (2) a condition with a partially explained etiology and pathophysiology, or (3) a condition with a clear and specific etiology and pathophysiology. Consideration should be given to: (1) the Veteran’s lay statements; (2) post-deployment complaints of bilateral arm pain; and (3) the in-service pre-deployment complaints and treatment received. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) with respect to the foot disorder claim with an appropriate medical professional. Any clinically indicated diagnostic testing should be performed. (a.) The examiner should first identify whether the Veteran has any current foot disorder, to include plantar fasciitis, or which may also include pain alone that rises to the level of functional impairment. If there is no diagnosis or functional impairment present, it should be explained why this is so. (b.) The examiner should then provide an opinion as to whether it is as likely as not (50 percent or greater probability) that any identified foot condition had its onset during, or is otherwise related to, the Veteran’s service, including the documented in-service bilateral feet complaints in the STRs. Consideration should be given to the Veteran’s lay statements and in-service complaints and treatment received. The examiner should provide a rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, Associate 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.