Citation Nr: 21074537 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-12 948 DATE: December 15, 2021 REMANDED Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for left foot plantar fasciitis is remanded. Entitlement to service connection for right ankle condition is remanded. Entitlement to service connection for left ankle condition is remanded. Entitlement to service connection for right shin splints is remanded. Entitlement to service connection for left shin splints is remanded. Entitlement to service connection for sleep apnea is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1976, March 2003 to July 2003, and December 2009 to December 2010. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision. In that decision, the RO, inter alia, denied the above claims of entitlement to service connection. In December 2019, the Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (sitting in Washington, D.C.). A transcript of that proceeding is of record. In May 2020, the Board remanded the case for additional development of the record, to include obtaining VA medical opinions and examinations, if deemed necessary. As set forth below, adequate opinions were not provided for the Veteran's claimed conditions on appeal, and they must be remanded for substantial compliance with the previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for right foot plantar fasciitis 2. Entitlement to service connection for left foot plantar fasciitis The Veteran contends that his right and left foot plantar fasciitis is directly related to active service. Service treatment records (STRs) indicate that on July 27, 2006, during service with the National Guard, the Veteran had plantar fasciitis and was advised to avoid running until further notice. In the March 2007 report of medical history, the Veteran reported foot trouble. In the November 2013 foot conditions DBQ, the VA examiner found that the Veteran does not have a diagnosed foot condition. He stated that per the Veteran's history, the bottoms of his feet hurt so badly as if someone hit them. He denied any injury or surgery on his feet other than military activities. During the December 2019 Board hearing, the Veteran testified that he sought treatment for plantar fasciitis with a private doctor and that he was diagnosed with plantar fasciitis between his two deployments. He testified that he noticed the pain during his deployment and has had it ever since and that it came from service, prior to his deployment to Spain. He stated that "they had us marching around like we were in boot camp all over again" and that they wore steel-toed combat boots. He stated that he never had any problems before he was forced to do physical training in steel-toed combat boots. He testified that he has had no other injuries or accidents that caused his conditions, and that he did not have any of these symptoms prior to the 2003 period of active duty. STRs show that the Veteran had plantar fasciitis during National Guard service, but he also credibly testified that he noticed the pain in his feet while on deployment. The November 2013 VA examiner found that the Veteran did not have a foot condition and did not address the Veteran's reports of pain and whether it may be related to service. As such, in the May 2020 remand, the Board directed that a VA addendum opinion be obtained addressing the etiology of his plantar fasciitis. The May 2020 VA examiner opined that the Veteran's right and left plantar fasciitis was less likely than not incurred in or caused by service. The examiner's rationale was that although there is a record of treatment for left foot pain in service records and a podiatry diagnosis of bursitis, heel spur, and plantar fasciitis, it must have been resolved. The examiner stated that the November 2013 DBQ was silent for objective findings and the x-ray of the left foot was unremarkable at that time. Review of the record reveals that another remand is warranted to decide these claims. As argued by the Veteran, the VA medical opinion was based on an absence of a current diagnosis of plantar fasciitis. However, the VA examiner did not address the Veteran's reports of pain in his feet, instead asserting that the condition must have resolved. The examiner also failed to conduct an examination, solely relying on findings of the previous VA examination. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the above, the Board finds that a VA addendum opinion should be obtained to address the Veteran's contentions as well as to provide an adequate opinion that is not solely based on the absence of a current diagnosis of plantar fasciitis. 3. Entitlement to service connection for right ankle condition 4. Entitlement to service connection for left ankle condition 5. Entitlement to service connection for right shin splints 6. Entitlement to service connection for left shin splints The Veteran contends that his right and left ankle conditions and shin splints are related to active service, to include as secondary to his bilateral plantar fasciitis condition. In the February 2017 VA Form 9, the Veteran stated that he believes the problem with his ankles and his bilateral shin splints are directly related to his bilateral plantar fasciitis. As previously noted in the May 2020 Board remand, these claims are inextricably intertwined with his claims for entitlement to service connection for right and left plantar fasciitis, currently on appeal. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, the Board previously directed that an addendum opinion be obtained addressing the etiology of the Veteran's right and left ankle conditions and shin splints, to include whether they are secondary to his bilateral plantar fasciitis. However, while the RO obtained addendum opinions for these claimed conditions, another remand is warranted to decide these claims. Regarding the right and left ankle conditions, the May 2020 VA examiner noted that they "clearly and unmistakably existed prior to service" and were not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner noted that the shin splints are less likely than not proximately due to or the result of the Veteran's service-connected condition. The rationale was that the Veteran's plantar fasciitis resolved and that other service-connected conditions are distinct and separate. The examiner noted that ROM during service and upon examination in 2013 were normal and that available evidence was silent for causation or aggravation. Regarding the right and left shin splints, the examiner stated that they were neither caused nor aggravated by any service-connected conditions as his hypertension, hypothyroidism, knee condition, and tinnitus are different medical conditions and have nothing to do with plantar fasciitis. The examiner stated that the available evidence is silent for aggravation and that "none on current symptoms in 2013 examination." The May 2020 VA opinion is inadequate and did not substantially comply with the May 2020 Board remand. Notably, it is unclear why or where the Veteran's ankle conditions were found to have clearly and unmistakably existed prior to service, as noted by the RO and the VA examiner. Review of the record provides no indication that the Veteran's conditions pre-existed service, and the Veteran has only asserted that his problems with his ankles and shin splints are directly related to his bilateral plantar fasciitis. In other words, the Veteran solely contends that the Veteran's ankle conditions and shin splints are secondary to his bilateral plantar fasciitis. The examiner did not adequately address the Veteran's reports of pain in his feet, claimed as plantar fasciitis, and how that may be related to his right and left ankle conditions or shin splints. Thus, a remand is required to obtain a new VA opinion to address the etiology of these claimed conditions. 7. Entitlement to service connection for sleep apnea The Veteran contends that his sleep apnea is related to service. In the November 2013 VA examination report, it shows a diagnosis of sleep apnea. However, a VA opinion addressing the etiology was not provided. In the February 2017 VA Form 9, the Veteran stated that he did not have a problem with sleep apnea until he went on active duty. He stated that he and everyone else had an issue with snoring during service. During the December 2019 Board hearing, the Veteran testified that he was initially diagnosed with sleep apnea in the late 80's/early 90's. He stated that he had surgery to correct it but that it returned before he was deployed and that it worsened in Afghanistan. He testified that during service he had his own room because of his snoring. In May 2020, the Board directed the RO to schedule a VA examination for the Veteran to obtain an opinion regarding the etiology of the Veteran's sleep apnea. Accordingly, the RO obtained an addendum opinion in May 2020. The May 2020 VA examiner stated that the Veteran's sleep apnea was less likely than not incurred in or caused by service. The examiner's rationale was that the service records were silent for sleep apnea and that the available evidence was silent for aggravation. The May 2020 VA opinion is inadequate and did not substantially comply with the May 2020 Board remand. The May 2020 VA examiner failed to address the Veteran's credible assertions that he had problems related to sleep apnea during service, including his reports of snoring. In light of the above, the Board finds that a VA addendum opinion should be obtained to address the Veteran's contentions as well as to provide an adequate opinion that is not solely based on the absence of a diagnosis of sleep apnea during service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion addressing the Veteran's right and left plantar fasciitis, right and left ankle conditions, and right and left shin splints (with examination if deemed necessary) from an appropriate VA examiner. The examiner must review the claims file, including the December 2019 Board hearing testimony. The examiner must specifically address the plantar fasciitis and foot trouble noted in service records as well as the Veteran's credible testimony that he noticed pain in his feet during service and that he has had pain in his feet ever since. (a.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left plantar fasciitis was incurred in or was otherwise caused by disease or injury in service. The examiner must reconcile the Veteran's reports of continued pain since service with the 2013 examination findings of no current disability. (b.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left plantar fasciitis were caused by service or were aggravated by a service-connected condition. (c.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left ankle conditions were caused by the Veteran's plantar fasciitis, or by any service-connected condition. (d.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right and left shin splints were caused by the Veteran's plantar fasciitis, or by any service-connected condition. The examiner must support any opinion rendered with a detailed rationale and address the Veteran's contentions. If the examiner cannot provide the above requested opinions, the examiner is advised that they must explain why the requested opinions cannot be provided. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. 2. Obtain an addendum opinion addressing the Veteran's sleep apnea condition (with examination if deemed necessary from an appropriate VA examiner. The examiner must review the claims file, including the December 2019 Board hearing testimony. The examiner must specifically address the Veteran's assertions that he had problems with sleep apnea that began in service, to include snoring. (a.) The examiner must provide a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea began in or was otherwise caused by service. The examiner must support any opinion rendered with a detailed rationale and address the Veteran's contentions. If the examiner cannot provide the above requested opinions, the examiner is advised that they must explain why the requested opinions cannot be provided. (Continued on the next page) The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Labi, 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.