Citation Nr: 21074076 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 10-40 697 DATE: December 14, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent, prior to June 28, 2012, 30 percent prior to January 8, 2020, and 50 percent thereafter for bilateral pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1991 to December 2000, from March 2003 to April 2004, and from May 2007 to July 2008. This matter comes before the Board of Veteran's Appeals (Board) from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in November 2020 when it was remanded for development. For the reasons explained in more detail below, the Board finds the November 2020 remand directives have not been substantially complied with, and the matter must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders). The Board sincerely regrets any further delay inherent in a remand, but such is required to obtain substantial compliance with a prior Board remand. Entitlement to a disability rating in excess of 10 percent, prior to June 28, 2012, 30 percent prior to January 8, 2020, and 50 percent thereafter for bilateral pes planus and plantar fasciitis, is remanded. By way of history, the Veteran disagreed with the initial noncompensable rating assigned to his bilateral foot condition, effective July 9, 2008. He explained that the percentage awarded did not reflect the severity of his disability. See July 2009 rating decision, notice of disagreement (NOD) of September 2009 and Form 9. During the pendency of the appeal, the Veteran's rating for his foot disability was increased from noncompensable to 30 percent, effective June 28, 2012. See December 2013 rating decision. In May 2015, the Board remanded the matter for development, to include an examination. See May 2015 Board remand. In July 2016, the Veteran was afforded an examination and the matter returned to the Board. In August 2017, the Board granted staged ratings for the Veteran's bilateral pes planus with plantar fasciitis (feet disability). The Board found the Veteran's foot disability to be consistent with a 10 percent disability rating prior to June 28, 2012 and with a 30 percent rating from June 28, 2012, forward, pursuant to diagnostic code 5276. See August 2017 Board decision. The Veteran disagreed with that decision and appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision issued on April 2019, the Court found the Board had not provided sufficient reasons and bases addressing the adequacy of the VA examinations administered to the Veteran in 2013 and 2016. The Court found the Board had not reconciled the Veteran's reports of flares that left him unable to walk with the examiners' conclusions in the examinations finding no significant functional loss. Thus, the Court vacated the Board's decision of August 2017 and remanded the matter to allow the Board to address the adequacy of both examinations and, if necessary, to provide an additional examination assessing the severity of the Veteran's foot disability. The Court also found that the Board has not discussed evidence favorable to the Veteran regarding functional loss on use prior to June 2012. See Memorandum decision of April 2019. It is noted the Veteran also argued that the Board failed to consider entitlement to a separate rating for his right tibialis sesamoid resection. See Appellant brief presented to the Court in July 2018. The Court did not specifically address this contention in the memorandum decision. In September 2019, the Board remanded the matter for development consistent with the Court's memorandum decision. In the remand directives the Board requested a VA examination to ascertain the severity of the Veteran's foot disability and requested a retrospective opinion regarding the Veteran's flares, in view of the evidence of record. The remand directives specifically requested the medical findings to be expressed in terms conforming to the schedular criteria under diagnostic code 5276 for pes planus. See September 2019 Board remand. Pursuant to the Board's remand, the Veteran was administered an examination for his foot disability in January 2020. Based on the results of the January 2020 examination, the agency of original jurisdiction (AOJ) issued a rating decision in July 2020, increasing the Veteran's foot disability rating from 30 percent to 50 percent, effective January 8, 2020. The matter was returned to the Board. In November 2020, the Board found that the prior remand directives had not been substantially complied with and the matter needed to be remanded again for compliance. In pertinent part, the Board observed that the examiner that examined the Veteran on January 2020 had not provided the requested retrospective opinion regarding functional loss or impairment the Veteran experienced during flares during the appellate period. Accordingly, the Board found the matter needed to be remanded again for compliance and included specific directives as to the development required. The remand directives of November 2020, requested a "retrospective opinion regarding the nature and extent of functional loss from the Veteran's service-connected bilateral pes planus and plantar fasciitis that occurs during flare-ups and when the feet are used repeatedly over a period of time." The examiner was asked to "describe how or provide an estimate of the extent to which the bilateral pes planus and plantar fasciitis disability had limited the Veteran's functioning during flare-ups since 2008, as reflected by the records (particularly VA examination reports dated April 2009, July 2013, and July 2016)." If the opinion could not be provided based on the Veteran's reports and what was shown in the records, without resorting to speculation, the examiner was to provide a full explanation as to why. Additionally, the examiner was to opine whether the Veteran's plantar fasciitis was due to injury or whether it was a degenerative condition. If the examiner determined the condition was due to injury, the examiner was to indicate whether any symptoms associated with plantar fasciitis were not included in the criteria for rating pes planus (DC 5276) and opine on the severity of the condition. See November 2020 Board remand. In May 2021 and July 2021, the Veteran was administered VA examinations for his feet disabilities. See Foot Conditions Disability Benefit Questionnaire (Foot DBQ) of May 2021, associated with the claims file that same month, and Foot DBQ of July 2021, associated with the claims file in August 2021. Following the July 2021 examination, the examiner provided three medical opinions in August 2021. In one medical opinion, the examiner opined that the Veteran's plantar fasciitis was a degenerative condition secondary to his flat feet. See medical opinion for secondary service connection associated with the claims file in August 2021. The second medical opinion explained that plantar fasciitis was not due to injury or a result of the Veteran's right tibial sesamoid removal surgery. In favor of this opinion, the examiner only noted that medical literature did not support that conclusion. See medical opinion regarding conflicting medical evidence of August 2021. The third medical opinion noted the Veteran's reports of flare-ups described as increased pain with use and noted that medical literature defines flares as a "worsening of the disease process." Thus, the examiner determined that in view of that definition, the Veteran's reports were consistent with the chronic disease process and were not consistent with flare-ups of the condition, as medically defined within medical literature. Accordingly, the examiner opined that the Veteran's condition does not present with flares, as medically defined. See medical opinion regarding conflicting medical evidence of August 2021. The Board finds the August 2021 medical opinion regarding flares does not substantially comply with the prior Board remand. The Board is unable to determine the purpose of the opinion as stated. The opinion provided does not comply with the previous remands to the extent that it does not address retrospectively the functional impairment the Veteran may have suffered due to flares throughout the appeal period, nor does it specify that the requested opinion cannot be provided without speculation, as the examiner only concluded that the Veteran's condition does not manifest with flares, as medically defined. Accordingly, a remand for compliance of the previous Board remands, to include clarification of the August 2021 medical opinion regarding flares, is necessary. The purpose of the retrospective opinion requested is to assist the Board with determining the appropriate disability rating for the Veteran's feet disabilities, from 2008 and forward. The Board seeks to clarify whether at any time during the appellate period, the Veteran's flares were of such severity, frequency, and duration that caused functional loss sufficient to warrant a disability rating in excess of 10 percent prior to June 28, 2012, and in excess of 30 percent prior to January 8, 2020, pursuant to diagnostic code 5276. Under Diagnostic Code 5276, which contemplates flat feet; a 10 percent rating is assigned for moderate bilateral flatfoot characterized by weight-bearing line over or medial to the great toe, inward bowing of the tendo-achilles, pain on manipulation and use of the feet; a 30 percent rating is warranted for severe manifestations such as evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities; and a 50 percent is warranted for bilateral pronounced flatfoot characterized by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achilles on manipulation, which is not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Thus, the examiner is requested to opine whether prior to June 28, 2012, the Veteran's bilateral foot disabilities manifested with functional loss during flares to an extent consistent with severe manifestations of flat feet such as evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities, or with any other symptomatology. In rendering this opinion, the examiner is asked to consider the evidence of record (particularly VA examination reports dated April 2009, July 2013, and July 2016), the Veteran's statements, and to procure any other necessary data to provide the opinion, such as clarification from the Veteran regarding the extent of his flares, prior to June 28, 2012. The examiner is also requested to opine whether prior to January 8, 2020, the Veteran's bilateral foot disabilities manifested with functional loss during flares to an extent consistent with pronounced flatfoot characterized by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achilles on manipulation, which is not improved by orthopedic shoes or appliances, or with any other symptomatology. In rendering this opinion, the examiner is asked to consider the evidence of record (particularly VA examination reports dated April 2009, July 2013, and July 2016), the Veteran's statements, and to procure any other necessary data to provide the opinion, such as clarification from the Veteran regarding the extent of his flares, prior to January 8, 2020. The Board also seeks to clarify whether the Veteran's plantar fasciitis disability manifests with symptomatology separate and different from the symptomatology of the flat feet disability. If it is possible to separate and differentiate the symptomatology associated with each disability, the examiner is asked to do so. Otherwise, if the symptomatology cannot be differentiated or clearly attributed to either condition, the examiner is asked to state so and explain his or her reasoning for the conclusion. Additionally, the Board requests the examiner to consider whether at any time during the appellate period the Veteran's service-connected flat feet with plantar fasciitis has manifested with complications or other symptomatology that is not considered in the rating criteria of diagnostic code 5276 for flat feet. In rendering this opinion, the examiner is asked to address the Veteran's surgical intervention in his right foot for a tibialis sesamoid resection and whether the Veteran has any residuals associated with the intervention. If the Veteran suffers from any residuals associated with the surgical intervention, the examiner is asked to explain whether such residuals can be differentiated from the symptomatology associated with the Veteran's flat feet with plantar fasciitis. If the symptomatology cannot be differentiated, the examiner is asked to state so and explain his or her reasoning for the conclusion. The examiner is also requested to consider whether the Veteran has hallux valgus, whether the condition is a complication or associated with the Veteran's service-connected flat feet with plantar fasciitis disability. The Board acknowledges the inherent difficulties that providing the requested retrospective opinions may present to the examiner, due to the length of time at issue and the specific details needed. However, the Veteran deserves the VA's best attempt to adjudicate his claims. Nonetheless, if providing the requested opinion is not possible without resort to mere speculation, then the examiner must state so and explain why. That is, if the examiner cannot provide an opinion as to additional functional loss the Veteran may have experienced during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Accordingly, the matter is remanded for Stegall compliance of the previous Board remands and for the development requested herein. The matter is REMANDED for the following actions: 1. Return the entire record to the examiner that subscribed the August 2021 medical opinions or to another appropriate examiner (if that provider is unavailable or unable to offer the opinion sought). The examiner is asked to provide the following opinions: a. Retrospective opinion Provide a retrospective opinion (for the period beginning in 2008 and until the present) regarding the nature and extent of functional loss from the Veteran's service-connected bilateral pes planus and plantar fasciitis that occurs during flare-ups and when the feet are used repeatedly over a period of time. The entire record (to include this Remand and the most recent examinations) and a copy of the criteria for rating foot disabilities (under 38C.F.R. §4.71a, Codes 5276-5284) should be available, and reviewed by, the examiner. The examiner must describe how/provide an estimate of the extent to which the bilateral pes planus and plantar fasciitis disability has limited the Veteran's functioning during flare-ups since 2008, as reflected by the record (particularly VA examination reports dated April 2009, July 2013, and July 2016) to include the Veteran's statements. The determination should be portrayed in terms of the additional functional loss/functional impairment during flare-ups. The examiner is asked to consider: i. whether prior to June 28, 2012, the Veteran's bilateral foot disabilities manifested with functional loss during flares to an extent consistent with severe manifestations of flat feet such as evidence of marked deformity (pronation, abduction, etc.), accentuated pain on manipulation and use, indication of swelling on use, and characteristic callosities, or with any other symptomatology. ii. whether prior to January 8, 2020, the Veteran's bilateral foot disabilities manifested with functional loss during flares to an extent consistent with pronounced flatfoot characterized by marked pronation, extreme tenderness of the plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo-achilles on manipulation, which is not improved by orthopedic shoes or appliances, or with any other symptomatology. In rendering this opinion, the examiner is asked to consider the evidence of record (particularly VA examination reports dated April 2009, July 2013, and July 2016), the Veteran's statements, and to procure any other necessary data to provide the opinion, such as clarification from the Veteran regarding the extent of his flares, throughout the appellate period from 2008, forward. [If the requested retrospective opinion cannot be provided based on the Veteran's reports and what is shown by clinical data in the record without resort to mere speculation, the examiner must state so and must explain why that is so.] b. Clarification regarding symptomatology The examiner is asked to clarify whether the Veteran's plantar fasciitis disability manifests with symptomatology separate and different from the symptomatology of the flat feet disability. If it is possible to separate and differentiate the symptomatology associated with each disability, the examiner is asked to do so. Otherwise, if the symptomatology cannot be differentiated or clearly attributed to either condition, the examiner is asked to state so and explain his or her reasoning for the conclusion. c. Consideration of complications The examiner is asked to consider whether at any time during the appellate period the Veteran's service-connected flat feet with plantar fasciitis has manifested with complications or other symptomatology that is not considered in the rating criteria of diagnostic code 5276 for flat feet. In rendering this opinion, the examiner is asked to address the following: i. the Veteran's surgical intervention in his right foot for a tibialis sesamoid resection and whether the Veteran has any residuals associated with the intervention. If the Veteran suffers from any residuals associated with the surgical intervention, the examiner is asked to explain whether such residuals can be differentiated from the symptomatology associated with the Veteran's flat feet with plantar fasciitis. If the symptomatology cannot be differentiated, the examiner is asked to state so and explain his or her reasoning for the conclusion. ii., whether the Veteran's hallux valgus condition is a complication or a condition associated with the Veteran's service-connected flat feet with plantar fasciitis disability. All opinion expressed must include a rationale, citing to supporting factual data and/or medical literature, as deemed appropriate. [If the addendum opinion is sought from an appropriate clinician other than the examiner that subscribed the August 2021 medical opinion, and if in such circumstances a further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] 2. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.xc