Citation Nr: 21074824 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 09-28 144 DATE: December 16, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for right foot plantar fasciitis prior to March 11, 2019, is remanded. Entitlement to an initial rating in excess of 20 percent for left foot plantar fasciitis with calcaneal spur prior to March 11, 2019, is remanded. Entitlement to a rating in excess of 50 percent for bilateral plantar fasciitis with left foot calcaneal spur on and after March 11, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2003 to May 2003 and January 2006 to October 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2008 by a Department of Veterans Affairs (VA) Regional Office. In March 2011, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2018, the Veteran was notified that the Veterans Law Judge who held his hearing was no longer employed at the Board and that he had a right to another Board hearing. Later that same month, the Veteran responded that he did not wish to appear at another Board hearing. Therefore, the Board may proceed with adjudication of the claim. In September 2011, the Board denied the Veteran's claim for entitlement to a compensable rating for his service-connected bilateral plantar fasciitis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court) and in an October 2012 Joint Motion for Partial Remand, the Court vacated and remanded the claim. The Board again denied the claim in December 2013, which the Veteran appealed to the Court. In an October 2014 Joint Motion for Remand (JMR), the Court vacated and remanded the matter. In a December 2014 decision, the Board granted an initial rating of 10 percent for bilateral plantar fasciitis. The Court granted a May 2015 JMR and, thereafter, the Board awarded individual initial 20 percent ratings for each foot in a March 2016 decision. Subsequently, the Court issued a Memorandum Decision in August 2017, which directed that the Board determine whether the record reasonably raised a claim for benefits based on service connection for his bilateral pes planus, right foot hallux valgus, and degenerative joint disease of the right toe. The Board remanded the claims in June 2018, May 2019, and November 2020 for additional development and they now return for further appellate review. 1. Entitlement to an initial rating in excess of 20 percent for right foot plantar fasciitis prior to March 11, 2019. 2. Entitlement to an initial rating in excess of 20 percent for left foot plantar fasciitis with calcaneal spur prior to March 11, 2019. 3. Entitlement to a rating in excess of 50 percent for bilateral plantar fasciitis with left foot calcaneal spur on and after March 11, 2019. Although the Board regrets the additional delay, another remand is necessary as there has not been substantial compliance with the November 2020 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); D'Aries v. Peake, 22 Vet. App. 97 (2008) (while strict compliance to the terms of the remand is not necessary, there must be at least a substantial compliance to the remand orders). In this regard, in the November 2020 remand, the Board found that the previously obtained September 2019 VA examination was inadequate as it did not include an evaluation for rating purposes for plantar fasciitis. Accordingly, the Board requested an additional VA examination and instructed the examiner to determine, to the extent possible, which symptoms are attributable to which service-connected disability. Moreover, the remand directives instructed the examiner to explicitly state how they determined the severity of the Veteran's left and right foot plantar fasciitis and to provide a retrospective opinion as to the severity of the plantar fasciitis since October 2006 to the present, if it is determined that the level of severity has changed over the course of the appeal. Accordingly, the Veteran was afforded VA examinations in April 2021 and August 2021. At the April 2021 VA examination, current diagnoses of plantar fasciitis, left foot calcaneal spur, and pes planus were noted. The Veteran reported progressed/worsened conditions and symptoms of pain to the heels, arches of feet with weight bearing, and while walking barefoot. There was also pain with prolonged standing, walking, and with any running. While the examiner noted that the Veteran has a diagnosis of pes planus, such is separate from the plantar fasciitis and calcaneal spur. The VA examiner found there was a worsening of the Veteran's symptoms associated with his bilateral plantar fasciitis with left foot calcaneal spur. The August 2021 VA examination reflects diagnoses of bilateral plantar fasciitis, right hallux valgus, bilateral arthritis, left calcaneal spur, and bilateral achilles enthesopathy. The examiner noted that the diagnoses of right and left foot plantar fasciitis had changed and were new and separate diagnoses. Additionally, achilles enthesopathy, degenerative arthritis, and hallux valgus were new and separate diagnoses unrelated to his right foot plantar fasciitis. The Veteran reported that his bilateral foot pain had progressively worsened throughout the years. He reported that this condition decreased his mobility and impacted his ability to stand or walk for more than 30 minutes. However, the examiner was unable to distinguish if his plantar fasciitis was specifically the cause of this progression. Upon review, the Board finds that the April and August 2021 VA examiners did not comply with the November 2020 Board remand directives in that they did not attempt to specify which symptoms were attributable to which service-connected disability. Stegall, supra. Moreover, the examiners did not explicitly state how they had determined the severity of the Veteran's plantar fasciitis or provide retrospective opinions as to the severity of the plantar fasciitis since October 2006 to the present after finding that his condition had progressively worsened. Rather, the August 2021 examiner was reportedly unable to distinguish whether the Veteran's plantar fasciitis was the cause of the progression and provided no rationale for such conclusion. Consequently, the Board finds a remand is necessary in order to obtain addendum opinions addressing such matters. The matters are REMANDED for the following action: Return the record, to include a copy of this Remand, to either the April 2021 or August 2021 VA examiner that performed the foot condition examinations, or an appropriate clinician if unavailable, for an addendum opinion. The need for additional examination is left to the clinician selected to provide the opinion. Following a full review of the record, the clinician should respond to the following: (A) Provide a full description of the severity of the signs and symptoms of Veteran's foot disabilities, to include bilateral plantar fasciitis with calcaneal spur, right foot plantar fasciitis, left foot plantar fasciitis, and right foot hallux valgus with degenerative arthritis of the right toe, dating back to October 2006. (B) To the extent possible, the clinician should indicate which symptoms are attributable to each of the Veteran's foot disabilities, to include bilateral plantar fasciitis with calcaneal spur, right foot plantar fasciitis, left foot plantar fasciitis, right foot hallux valgus with degenerative arthritis of the right toe, degenerative changes of the left foot, and left foot achilles enthesopathy. (C) When providing the above, the clinician should also indicate the severity of the symptomatology in terms of "moderate," "moderately severe," and "severe" and explicitly state how he or she determined the severity of the Veteran's foot conditions. (D) If the clinician is unable to provide any of the aforementioned opinions, the clinician must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity and/or functional loss), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A complete rationale should be provided for any opinion offered. M. M. CELLI Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.