Citation Nr: 21074463 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-10 193A DATE: December 15, 2021 REMANDED Entitlement to service connection for bilateral foot conditions, other than plantar fasciitis, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 until June 1983. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in April 2019 when it was remanded for further development. There has not been substantial compliance with the prior remand instructions and another remand is now required. Stegall v. West, 11 Vet. App. 268 (1998). Subsequent to the remand, service connection was granted for bilateral plantar fasciitis. See September 2020 rating decision. As a result, the appeal of service connection for a foot disability, other than plantar fasciitis, remains on appeal. Entitlement to service connection for bilateral foot conditions, other than plantar fasciitis, to include as secondary to service-connected disability, is remanded. The claim must be remanded again because the VA medical opinions obtained on remand are inadequate. On remand, a new examination and medical opinion is needed to address the nature and likely etiology of any diagnosed foot disabilities, other than plantar fasciitis. In addition to the now service-connected bilateral plantar fasciitis, the Veteran has been diagnosed with bilateral pes planus, hammer toes, hallux rigidus and degenerative arthritis. The rationale for the negative November 2019 VA opinion is inadequate. The examiner attributed the hammer toes and arthritis to post-service employment but did not include any discussion of the significance of that employment versus the Veteran's in-service complaints. The Veteran's pes planus was noted on enlistment and separation from service, characterized as "mild, asymptomatic" on both examinations. However, the Veteran was seen for complaints of foot pain during service. The June 2020 VA on in-service aggravation of a pre-existing disability is inadequate because the examiner said, "there is nothing suggesting that [the Veteran's] pes planus was aggravated by service." That examiner did not address the documented complaints of foot pain in service or the Veteran's report of continuous pain since service. October and November 2020 VA opinions are also inadequate. The October 2020 examiner used the incorrect standard for secondary aggravation. The November 2020 opinion appeared to address the competency of the previous examiner and Additionally, the Veteran has identified a private podiatrist from whom he receives treatment. A review of recent VA treatment records suggests that the Veteran continues to receive care from Dr. E.D. of Denis Foot and Ankle Specialists. On remand, efforts should be made to obtain updated treatment records from the identified private provider. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. E.D. of Denis Foot and Ankle Specialists. Make two requests for the authorized records from Denis Foot and Ankle Specialists unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's VA treatment records for the period from November 2020 to the present. 3. After completion of the above, schedule the Veteran for a VA examination to determine the nature and likely etiology of any diagnosed foot disability, other than plantar fasciitis. or his foot conditions other than plantar fasciitis. The examiner should be provided copies of all pertinent records. After examination of the Veteran, review of the record, and completion of any studies or tests deemed necessary, the examiner is asked to answer the following: (a) Clarify all diagnoses related to the Veteran's claimed bilateral foot disability. (b) Is it at least as likely as not that the pes planus, which existed prior to service, at least as likely, increased in severity during service? The examiner must address the reports of the enlistment and separation examinations and the Veteran's documented foot complaints in service. (c) If the answer to (b) is yes, is there clear and unmistakable evidence (is it undebatable?) that the increase in severity clearly and unmistakably (undebatable) due to the natural progression of the disease? The examiner should identify the clear and unmistakable evidence with specificity. The examiner is notified that the Veteran is competent to report symptoms he has experienced. The examiner should consider, and discuss as necessary, the following: (i) the notation of mild asymptomatic pes planus at both enlistment and separation, (ii) the February 1980 treatment record with a possible diagnosis of fasciitis, and (iii) the Veteran's consistent report of foot pain since service. (d) For each diagnosed foot disability other than plantar fasciitis, is it at least as likely as not (50 percent or greater probability) that the diagnosed disability had its onset in or is otherwise related to service? (e) For each diagnosed foot disability other than plantar fasciitis, is it at least as likely as not (50 percent or greater probability) that the diagnosed disability is (i) proximately due to or (ii) aggravated by (defined as any increase in disability) the Veteran's service-connected plantar fasciitis? All provided opinions must be supported by complete rationale. If the examiner concludes that a requested opinion cannot be provided without resort to speculation, they should say why. 4. Confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.