Citation Nr: 21068325 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-59 778 DATE: November 10, 2021 REMANDED Entitlement to service connection for a bilateral foot condition, to include plantar fasciitis, is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army from November 1987 to April 1988 and from January 2003 to April 2004. The appellant also has had extensive service in the Puerto Rico Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the claim for service connection for a bilateral foot condition. This decision was appealed in a notice of disagreement (NOD) received by VA in August 2016. A Statement of the Case (SOC) was issued by VA in October 2017. VA received the appellant's Substantive Appeal (Form 9) in November 2017, perfecting the appeal. This claim was initially denied by the Board in a September 2018 decision. In May 2019, the Court of Appeals for Veterans Claims granted a joint motion for partial remand (JMPR), which in pertinent part, remanded this claim because the appellant had requested, but was not afforded an opportunity for, a hearing before a Decision Review Officer (DRO). Accordingly, in August 2019, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for the required development. In a January 2021 Board decision, it was noted that the appellant had been scheduled for a hearing before a DRO but failed to appear for that hearing or to provide good cause for not showing up. The issue though was remanded though so that a Supplemental Statement of the Case (SSOC) could be issued addressing additional treatment records received since the prior Board decision in . A Supplemental Statement of the Case (SSOC) was issued by VA in September 2021. 1. Entitlement to service connection for a bilateral foot condition, to include plantar fasciitis, is remanded. While the Board regrets further delay in adjudicating this issue, remand is necessary to obtain an additional VA examination and medical opinion. In reviewing the June 2016 VA medical examination and medical opinion, and the evidence received since that examination was conducted, the Board finds that a new VA medical examination needs to be conducted and that a new VA medical opinion should be obtained. The Board notes several issues that need to be addressed on remand based upon the June 2016 VA medical examination and opinion. First, the Board notes that the examiner merely recorded a diagnosis date for the disability of plantar fasciitis and does not appear to have solicited any information from the appellant regarding the onset date and circumstances of his symptoms. The examiner's opinion found the appellant's disability did not develop during active service, but there does not appear to be any basis for this conclusion, as the examiner did not bother to note when the appellant's symptoms had their onset. The Board observes that the diagnosis of an injury or disease process does not usually mean the symptoms or conditions comprising the diagnosis began the day the condition was diagnosed. Rather, it is usually indicative of ongoing symptoms over a period of time. In this case, the examiner did not elicit any information during the examination as to how long the appellant's symptoms had persisted prior to the diagnosis. The Board observes that the examiner only opined as to whether the appellant's disability developed while he was on active service, finding that because it was diagnosed many years later, it was not otherwise related to the appellant's active service. The Board notes that this rationale is inadequate, as it appears to rely entirely on the lack of an in-service diagnosis. The examiner does not discuss whether the appellant experienced symptoms of pain in his feet while on active service. The examiner also failed to consider whether the current disability, which may have developed its present form later, was otherwise the result of an injury or event related to active service. As such, the Board finds the June 2016 VA medical opinion inadequate. Further, the Board notes the appellant had many years of service in the Puerto Rico Army National Guard, with periods of active duty for training (ADT) or inactive duty for training (IDT). Service connection may be granted for an injury or disease which was incurred or aggravated during, or during travel directly to or from, a period of ADT, or an injury, myocardial infarction, cardiac arrest, or cerebrovascular accident incurred or aggravated during, or during travel directly to or from, a period of IDT. 38 C.F.R. §§ 3.1, 3.6. The examiner's opinion did not discuss whether the appellant's bilateral foot disability might have developed during a period of ADT. The examiner noted the appellant's plantar fasciitis was diagnosed in 2015 while he was still serving in the Puerto Rico Army National Guard. The Board notes the examiner mentioned the appellant's employment with the United States Postal Service (USPS) in the rationale for the negative nexus opinion; however, the examiner did not indicate why this was relevant to the discussion of whether the appellant's plantar fasciitis or other foot disabilities occurred during a period of active service, ADT or IDT. The Board surmises that the examiner was implying that repetitive use of the feet, consistent with work at the USPS was a more likely cause for the development of this disability; however, this was not spelled out in the opinion. Even if such were the case, in raising this contention, the examiner tacitly acknowledges that this disability can be the result of overuse of the feet. If so, this implicitly raises a theory of entitlement such that repetitive use of the feet, consistent with the time and manner of ADT and IDT service, might be the cause of the current disability. As such, on remand, the examiner should opine as to whether the disability is related to an injury incurred while the appellant was on ADT or IDT with the Puerto Rico Army National Guard, to include overuse of the feet. Finally, the Board notes that since the June 2016 VA examination, the appellant has received a podiatry consult and x-rays of his feet which found a calcaneal spur on the appellant's left foot. X-rays do not appear to have been taken as part of the June 2016 VA examination of the appellant's feet. The appellant's initial claim for service connection is broad enough, when read sympathetically, for the claim to encompass whether service connection for this calcaneal spur is warranted, if the spur itself causes functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018) (holding that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."); see also See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that VA must construe a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). As such, on remand, the examiner should provide an opinion as to whether the appellant's left foot calcaneal spur developed while he was in active service, or is related to an injury incurred during a period of ADT or IDT. In remanding this claim for further development, the Board makes no findings regarding the credibility of any of the appellant's lay statements or reports of symptoms. The matters are REMANDED for the following action: 1. Schedule the appellant for a VA examination for bilateral foot disability. The examiner must review the claims file. The examiner should elicit statements from the appellant regarding the onset date of symptoms and the circumstances surrounding the onset of symptoms related to his feet rather than just recording the date a disability was officially diagnosed. The examiner is asked to provide a response to the following: Is the appellant's bilateral foot condition, to include plantar fasciitis and a calcaneal spur on the left foot, at least as likely as not related to active service, including the appellant's period of active service in the United States Army, or a period of active duty for training or inactive duty for training in the Puerto Rico Army National Guard? The examiner must provide a rationale to support the opinions. The appellant's contentions must be addressed. These include his assertion that the bilateral foot condition began during the hiss active service, or was the result of overuse over many years of service on active duty for training and inactive duty for training with the Puerto Rico Army National Guard. The examiner must discuss whether the appellant's condition developed while he was in active service from January 2003 to April 2004. The examiner is reminded that a lack of contemporaneous medical documentation cannot be the sole basis for a negative opinion. The previous examiner raised the theory that the appellant's plantar fasciitis is possibly the result of long-term overuse in working for the United States Postal Service. As such, the examiner on remand must discuss whether the current disability at least as likely as not is due to long-term overuse related to duty performed over many years on active duty for training or inactive duty for training in the Puerto Rico Army National Guard. In providing the requested opinion, consider the appellant's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported injuries and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.