Citation Nr: 21072228 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-36 181 DATE: December 2, 2021 REMANDED Entitlement to service connection for a right foot disability, to include pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 2007 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, among other claims, denied the Veteran's claim of entitlement to service connection for a right foot disability. The Board has re-characterized the claim as listed on the cover page of this decision because the record indicates assessments of pes planus and plantar fasciitis of the right foot. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board previously remanded this claim in August 2018, July 2020 and in June 2021, for further evidentiary development. The Veteran has, as a matter of law, the right to compliance with remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Strict compliance with remand directives is not necessary, however substantial compliance is required. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The remand directives have not been substantially complied with due to an inadequate VA examination. Entitlement to service connection for a right foot disability, to include pes planus and plantar fasciitis, is remanded. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An examination is adequate if it considers the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. In June 2021, the Board remanded this claim to afford the Veteran a new VA examination and obtain a new medical opinion. In August 2021, the Veteran was afforded a VA examination, with the examiner assessing plantar fasciitis. The VA examiner offered a negative opinion, concluding that the plantar fasciitis, assessed in 2019, was less likely than not related to service, to include reports of pain when running and pain after sit-ups with a toe-bar with a documented contusion of the right foot after doing said sit-ups. However, as the Veteran's representative points out, the examiner failed to address the Veteran's competent lay reports of pain in the right foot during and since service. Moreover, the examiner failed to address the May 18, 2011, assessment of pes planus of the right foot, made a little over two weeks after the Veteran's discharge. The examiner did not adequately consider the Veteran's prior medical history and examinations. Id. Accordingly, the examination report is returned. 38 C.F.R. § 4.2. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA foot examination to determine the nature, extent, onset, and etiology of his claimed right foot disability, to include pes planus and plantar fasciitis. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner must obtain a complete, pertinent history from the Veteran. The examiner is also instructed to assume the Veteran's statements are competent. The examiner should render an opinion as to whether it is at least as likely as not (meaning a likelihood of about 50%) that any assessed right foot disability, to include pes planus and plantar fasciitis, is related to or had its onset during service. The examiner should provide the Veteran with an opportunity to offer a history of his symptoms, including the circumstances of any lay-observed manifestations, such as pain. The examiner's attention is directed to the service treatment records documenting right foot pain in March 2011 after doing sit-ups using a toe-bar with the contemporaneous assessment of a foot contusion, the assessment of pes planus and a foot nodule made on May 18, 2011, (about two weeks after the Veteran's separation from service), and the Veterans competent reports of right foot pain in and since service. In rendering this opinion, and particularly with respect to pes planus, the examiner must consider whether the Veteran had a right foot disability at any course during the present claim, i.e., since May 1, 2012, regardless of whether the examiner concludes that the Veteran has a disability at the time the examiner renders the requested opinion. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Along these lines, the examiner's attention is directed to the assessment of pes planus on May 18, 2011. The rationale for all opinions expressed should be provided. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. 2. After the development directed above has been completed to the extent possible, and any other development deemed necessary by any newly obtained evidence, readjudicate the claim. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.