Citation Nr: 21003464 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-06 754A DATE: January 21, 2021 REMANDED Entitlement to service connection for a bilateral foot condition, to include as secondary to the service-connected intervertebral disc syndrome (IVDS), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 2004 to October 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously remanded by the Board in August 2016, September 2017, March 2020, and September 2020. The case has since been returned to the Board for appellate review. When this issue was last before the Board in September 2020, it was remanded to obtain an addendum medical opinion because the addendum medical opinion obtained in April 2020 pursuant to the prior March 2020 Board remand did not comply with the directives issued in the March 2020 Board remand. The remand directed the examiner to explain the significance of the specific in-service and post-service treatment records after he or she opined as to whether the Veteran’s foot conditions were causally related to service. The remand also directed the examiner to specifically address whether weight gain associated with the Veteran’s service-connected intervertebral disc syndrome (IVDS) could have caused the Veteran’s bilateral foot condition. Pursuant to the September 2020 Board remand, an addendum medical opinion was obtained from a VA examiner in November 2020 to determine the nature and etiology of the Veteran’s bilateral foot condition. The November 2020 VA examiner opined that the Veteran’s current bilateral foot condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He explained that there is no evidence of a chronic foot condition while in service. He stated that strenuous physical activity, including prolonged marches under load, us conceded with military service. He noted that the Veteran’s separation examination is negative for complaints and the examination itself is negative for foot conditions. He stated that the Veteran had a VA examination in August 2007 during which no foot condition was identified an all symptoms and findings were attributed to the Veteran’s IVDS. He concluded that it was therefore less likely than not that the Veteran’s bilateral plantar fasciitis, degenerative joint disease, and fibromatosis were due to or incurred in military service. He further noted that although the Veteran and his spouse contend that the Veteran had pain and swelling in his feet during service, there was no condition present at separation from service and no foot condition was identified until two years post-service when the Veteran was diagnosed with mild plantar fasciitis in 2008. The examiner then opined that the Veteran’s bilateral foot condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected IVDS. He explained that back conditions, including IVDS, would not cause plantar fasciitis or fibromatosis. He noted that this “is accepted medical knowledge and practice, supported by standard texts such as Wheeless.” He stated there is no physiologic or anatomic mechanism by which back conditions could cause the Veteran’s foot conditions. He explained that if anything, one would anticipate IVDS to limit activity and prolonged standing and lessen one’s chance of plantar fasciitis. He stated that the exact cause of fibromatosis is unknown, and the condition is extremely rare. The examiner went on to note that it was not clear if the Veteran truly had fibromatosis because it was a “carry-forward” diagnosis that seemed to have arisen from a referral for evaluation for possible fibromatosis. He noted that an x-ray from 2011 showed very small calcified nodules in the right plantar fascia. He explained that this may have represented residuals of chronic fasciitis with calcified inflammatory areas. He stated that podiatry notes were not completely clear on the Veteran’s fibromatosis diagnosis. He explained that fibromatosis is not considered a sequela of plantar fasciitis, but noted that it has been diagnosed in the Veteran’s medical history and there is not enough information to delete the diagnosis without a magnetic resonance image (MRI). Finally, the examiner opined that the Veteran’s bilateral foot condition is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by the Veteran’s service-connected IVDS. The examiner had been specifically asked to address whether the Veteran’s weight-gain associated with his service-connected IVDS aggravated his current foot conditions beyond their natural progression. The examiner explained that obesity will aggravate a foot condition such as plantar fasciitis or fibromatosis; however, it is impossible to “pin” obesity on any one factor. He stated that obesity is multifactorial, including dietary habits, food quality, caloric intake, exercise, attitude towards exercise, basic metabolic rate and genetics. He explained that there are specific exercise programs designed for people with physical disabilities, including back disabilities like IVDS. He noted that dieticians, physical therapists, and occupational therapy is also available to assist such patients. He explained that there was no evidence to support that the Veteran’s obesity is due to the Veteran’s back conditions alone and therefore aggravation cannot be attributed to weight gain due to the Veteran’s back conditions. He then stated that age and inactivity due to any cause, are major risk factors for weight gain. He concluded that there was no evidence of aggravation of his foot conditions beyond the natural course due to any cause, explaining that chronic plantar fasciitis and fibromatosis are chronic conditions and are prone to episodes of exacerbation. The Board finds that the November 2020 VA examiner’s statement that an MRI is needed to confirm the Veteran’s fibromatosis diagnosis raises the question of whether a sufficient foundation exists for his addendum opinions as it is unclear whether the examiner exhausted reasonable efforts of further testing and research that could lead to a more definitive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). Thus, the Board finds that there has not been substantial compliance with the previous remand and further remand is necessary to obtain an MRI, as well as an additional VA examination and medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an MRI and a VA examination to determine the nature and etiology of his claimed bilateral foot disabilities. The entire claims file, to include a complete copy of this remand, must be reviewed by the examiner. All indicated tests should be performed, and all findings should be reported in detail. (a.) Please identify each foot disability affecting the Veteran during the period on appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current foot disability is causally related to his military service. The examiner is asked to specifically address the October 2005 in-service complaint of foot pain and assessment for swelling and tenderness in the Veteran’s feet; the Veteran’s May 2017 testimony that “rigorous” in-service road marches and mile-runs coupled with his back condition and weight-gain resulted in foot pain and swelling; and the Veteran’s wife’s March 2010 lay statement that the Veteran was treated at an Army hospital for pain in his feet in January 2005 and had a post-service evaluation in May 2007 that revealed irregular and hypertrophic changes in his feet. If it is less likely that the Veteran’s current bilateral foot condition(s) is/are related to his period of service, the examiner should discuss why this is the case, with full consideration of the Veteran’s own reported history. (c.) The examiner must also address whether the Veteran has a disability manifested by pain in his feet. The examiner should specifically indicate whether the Veteran has or had functional impairment of earning capacity in his feet, in accordance with the holding of Saunders v. Wilkie, 885 F.3d 1356 (Fed. Cir. 2018), and, if so, the examiner should express an opinion as to whether it is at least as likely as not it was incurred in or otherwise the result of the Veteran’s military service. (d.) If not directly related to service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s current foot condition(s) was/were caused by the service-connected intervertebral disc syndrome (IVDS). The examiner should explain why or why not. He or she is asked to address whether the Veteran’s weight-gain associated with his service-connected IVDS caused his current foot condition(s). (e.) If not caused by the service-connected IVDS, the examiner must address whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s foot condition(s) was/were worsened beyond natural progression (aggravated) by his service-connected IVDS. The examiner is asked to specifically address whether the Veteran’s weight-gain associated with his service-connected IVDS aggravated his current foot condition(s) beyond natural progression. The examiner is advised that a finding that the disability is aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected disability. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The examiner is encouraged to cite to medical/scientific information to support his/her opinion as appropriate. (Continued on the next page)   The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity for an examination if an examination is deemed necessary. If a VA examination proves not feasible for any reason, the claims file should still be reviewed by an appropriate professional for the purpose of providing the requested opinions. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.