Citation Nr: 21071619 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-34 225 DATE: November 30, 2021 ORDER Service connection for a right foot disability, to include right foot pain and plantar fasciitis (right foot disability) is granted. Service connection for a left foot disability, to include left foot pain and plantar fasciitis (left foot disability) is granted. REMANDED The service connection claim for a menstrual disorder is remanded. FINDINGS OF FACT 1. The Veteran's right foot pain constitutes a disability which causes functional impairment, and it was incurred during her active service. 2. The Veteran's left foot disability constitutes a disability which causes functional impairment, and it was incurred during her active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a left foot disability, to include left foot pain and plantar fasciitis (left foot disability) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1985 to August 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. In October 2018 and May 2021, the Board remanded this matter to the Regional Office for further evidentiary development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in, or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That determination requires a finding of a current disability that is related to an injury or disease in service. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran contends that her current bilateral foot disability is due to her daily use of combat boots for the entirety of her six years in service. See July 2016 Board Appeal. Further, she explained that she suffered from foot problems in the military, and that she thought that the foot pain would be temporary, and would go away as soon as she no longer had to wear the boots. Since leaving the military, she has not done any physical activities that would cause foot problems. See January 2011 Statement in Support of Claim. Pertinent to this claim, the Board clarifies and acknowledges that as a general rule, pain alone, even without an underlying pathology or diagnosis, may constitute as a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment.). In this regard, the Board finds that the Veteran's bilateral foot pain constitutes a disability because the medical evidence sufficiently demonstrates that her bilateral foot pain results in functional impairment. For example, the October 2019 VA examination report indicates that the Veteran described having sharp pain in her feet; she reported having flare-ups of bilateral foot pain, which she described as consisting of "increased pain in the feet"; and she explained the functional loss or functional impairment of her bilateral foot pain as the result of activities, including prolonged walking and standing, which cause foot pain. She further reported that she has constant foot pain, daily, including pain on use of the feet; and that she uses arch supports to relieve the symptoms of her bilateral foot disability. The medical evidence confirms that the Veteran has a current bilateral foot disability, which includes bilateral foot pain and plantar fasciitis. See e.g. August 2013 VA Examination for Foot Conditions; see also May 2014 Private Treatment Notes; see too February 2015 Private Treatment Note. Turning to the question of the etiology of the current disability, although VA examiners rendered nexus opinions on the Veteran's bilateral foot disability in May 2012, August 2013, and October 2019, the Board previously found that these opinions were inadequate because the VA examiners, among other deficiencies, failed to address or consider the Veteran's assertions of continuing in-service bilateral foot pain, which continued post service and to the current period, in rending a negative nexus opinion on the bilateral foot disability. In the most recent, September 2021 VA opinion, a VA examiner opined that it is less likely than not the Veteran's bilateral plantar fasciitis had its onset in, or is otherwise related to the Veteran's active military service. As the rationale for this opinion, the VA examiner reasoned that the Veteran's service treatment records were silent for plantar fascitis upon her separation from service. While the VA examiner did not expressly opine whether the Veteran's current bilateral foot pain was incurred in service, or that it is related to her service, he conceded that "the Veteran's assertions of in-service onset of bilateral foot pain[,] and that [this] pain has continued since service is not uncommon for a lot of veterans." He further explained that the physical stress of the feet from basic training, physical training, and much running and walking during physical training cause a lot of veterans, including this Veteran, to have bilateral foot pain. Additionally, he reasoned that the most common etiology for in-service foot pain is overuse, which is acute, self-limiting, and "portends to no chronic sequalae[,] and this overuse syndrome can be and often is a recurrent acute condition, but still does not represent a chronic foot condition." After considering the Veteran's credible lay testimony regarding in service onset as well as continuity of symptoms since service discharge, the overall probative evidence establishes a clear correlation between the in-service onset and occurrence of the Veteran's bilateral foot pain and her current bilateral foot pain disability. Therefore, service connection for a bilateral foot disability is granted. REASONS FOR REMAND The Board regrets further delay, as an additional development is required before the Board may render a fully-informed decision on the remaining issue on appeal. In May 2021, the Board remanded the issue of service connection for a menstrual disorder for the Regional Office to obtain a new VA opinion on the etiology of this disability, because the Regional Office failed to substantially comply with the prior, October 2018 Board remand, when it obtained an inadequate, October 2019 VA opinion. In that October 2019 VA opinion, the VA examiner's rationale was solely based on the absence of documented evidence in service treatment records, including the Veteran's separation examination. Thus, in the May 2021 remand, the Board instructed, among other directives, that a VA examiner address the Veteran's statements and records, and further, "determine whether any of the Veteran's gynecological complaints are due to an undiagnosed illness; or a medically unexplained chronic multi-symptom illness. Accordingly, the Regional Office obtained another VA opinion in September 2021. In this September 2021 VA opinion, a VA examiner opined that it is less likely than not the Veteran's polycystic ovary syndrome and fibroids are causally related to her service. In addressing the Veteran's assertions, that she had normal periods prior to her service in the Persian Gulf, and that in November 1990, she stopped having periods for six months, the VA examiner reasoned that "the Veteran's period of amenorrhea [(i.e. absence of menstruation) in the service is most likely secondary to stress and exercise/running[as] stress and exercise/running are well known to cause amenorrhea." Further, he stated, without indicating when, that the Veteran later began having menstrual periods which were irregular, at which time she was found to have polycystic ovary syndrome, and that in 2009, she had an ablation for periods, which was treated with a hysterectomy in 2010. However, these reasons still do not clearly explain how or why the stress or exercise-related amenorrhea could not have led to, or are not related to the development of polycystic ovary syndrome, or fibroids. Finally, the VA examiner opined that there is no evidence that the Veteran's fibroids or her polycystic ovarian syndrome is due to an (a) undiagnosed illness; or (b) a medically unexplained chronic multi-symptom illness. In rendering this particular opinion, however, the VA examiner rendered an ambiguous, condensed opinion that does not clearly address each disability and each sub-question, in assessing the etiology of the polycystic syndrome, and fibroids. Additionally, the VA examiner did not provide a clear, adequate rationale for his opinion because he did not explain why the Veteran's polycystic syndrome and fibroids are not undiagnosed illnesses; and why neither menstrual disorders do not constitute as medically unexplained chronic multi-symptom illnesses. Rather this rationale is primarily based on the absence of evidence of multi-symptoms illnesses in service treatment records, as the VA examiner reasoned that the Veteran did not have multi-symptom illnesses, such as, for example, chronic fatigue syndrome or fibromyalgia, during her service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Thus, for these above-mentioned reasons, this September 2021 VA opinion is not in substantial compliance with prior Board remand directives. As a matter of law, a Board remand affords a Veteran or other claimant the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, a remand is required for a new VA opinion on the etiology of the Veteran's menstrual disorder. The matters are REMANDED for the following action: 1. Obtain a new VA opinion on the Veteran's menstrual disability. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. Identify all of the menstrual disorders that the Veteran has been diagnosed with, including polycystic ovarian syndrome and fibroids, since the date she filed her fully developed claim. b. For each menstrual disorder, independently opine whether it is at least as likely as not (more than 50 percent probability) the pertinent mental disorder is: i. An undiagnosed illness?; ii. A medically unexplained, chronic, multi-symptom illness? c. For clarification purposes, the VA examiner must take note of the following: i. An "undiagnosed illness" is defined as a condition that cannot be attributed to a known clinical diagnosis, by history, physical examination, and laboratory tests. ii. A "medically unexplained chronic multi-symptom illness" is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317(a(2)(i)(B). Additionally, the term "medically unexplained chronic multi-symptom" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features, such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. iii. Signs or symptoms which may be manifestations of an undiagnosed illness or a medically unexplained chronic, multi-symptom illness, include, but are not limited to fatigue, signs or symptoms involving skin, headaches, muscle pain, joint pain, neurological signs or symptoms; neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, or abnormal weight loss. d. If the VA examiner finds that any diagnosed mental disorder is not an undiagnosed illness or a medically unexplained chronic multi-symptom illness, opine whether it is at least as likely as not, the pertinent mental disorder was incurred in service; or is the result of an illness, injury, or event during her active service in the Persian Gulf. e. In rendering an opinion, the VA examiner must address, in addition to all pertinent medical treatment records, the Veteran's statements, including but not limited to, her assertion that her menstrual disorder is due to in-service inoculations, as well as a change in her menstrual cycle pattern in an April 1985 Report of Medical History. f. For each opinion and/or finding, the VA examiner must provide a clear, detailed explanation. If an opinion cannot be provided without resorting to speculation, the VA examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.