Citation Nr: 21077018 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-54 180 DATE: December 28, 2021 REMANDED Entitlement to service connection for plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1985 to February 1989, with additional service in the National Guard until approximately 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The Veteran waived consideration by a Department of Veterans Affairs (VA) Regional Office (RO) for any additionally received evidence. A transcript of the hearing is associated with the claims file. This matter was previously before the Board in March 2020, at which time it was remanded to the RO for further development. The March 2020 Board decision also remanded the issue of entitlement to service connection for a right hip disability, which was granted by the RO in a November 2020 rating decision. As the issue was granted in full, it is no longer on appeal before the Board. In July and September 2021, the Veteran sent letters to the Board revoking his existing Form 21-22 and asking VA to remove his representative. While veterans have a right to representation under 38 C.F.R. § 20.5, they are not required to have a representative and there are no restrictions on a veteran's ability to revoke representation. As the Veteran made an unequivocal request to remove representation and did not appoint a new representative, there is no representative appointed at the time this decision is being issued. The Veteran's September 2021 letter also asked for his appeal to be advanced on the docket because his prior representative had not submitted an Informal Hearing Presentation (IHP) in a timely manner due to the pandemic, which delayed the Board's ability to proceed with his appeal. Appeals must be considered in docket number order, but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(a) and 38 C.F.R. § 20.900(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, severe financial hardship, or administrative error resulting in a significant delay. An appeal may also be advanced if the case involves interpretation of a question of law of widespread application affecting other claims, although this is extremely rare. Any motion for advancement should be supported by pertinent documentation. While the Board is empathetic to the Veteran's concern about the delay caused by waiting for his representative to produce an IHP, the delay was not an administrative error by VA. Further, the delay in this case was less than a year. The Supplemental Statement of the Case (SSOC) was issued by the RO in December 2020, and the claim was docketed at the Board in March 2021. Thus, the Board finds that the delay also cannot be considered "significant" for purposes of advancing an appeal on the docket. Finally, the evidence also does not support a finding that the Veteran is 75 years or older, has a serious illness, or has severe financial hardship. In the absence of sufficient cause, the Veteran's motion to advance his appeal on the docket is denied. In accordance with this ruling, the Veteran's appeal will remain in its current docket number order. The Veteran may submit additional evidence supporting advancement on the docket if he wishes to submit another motion for consideration. 1. Entitlement to service connection for plantar fasciitis is remanded. Although development was attempted as to the Veteran's National Guard service while the matter was on remand to the RO, the development was inadequate to allow the Board to adjudicate the Veteran's claim. Although a request for information was submitted in March 2020 that requested the Veteran's "reserve record," the negative response received in June 2020 was explicitly in reference to Service Treatment Records (STRs) rather than personnel records related to the Veteran's National Guard service. Further, an October 2020 Information Report shows that the Veteran had "Guard/Reserve Active Service" on several occasions throughout 2011, but does not provide adequate information about the legal authority under which the service occurred. Finally, the record contains conflicting information regarding whether the Veteran was serving in the Air National Guard or the Air Force Reserve in 2011, when the Veteran was first treated for plantar fasciitis. The legal standard applicable for deciding the Veteran's claim is different depending on whether he was serving in the Air National Guard or the Air Force Reserve, and based on classification of his active service periods as Active Duty for Training (ACDUTRA), Inactive Duty for Training (INACDUTRA), or another type of service. Therefore, it is necessary to remand this issue again to allow the RO to attempt to obtain the Veteran's Reserve and/or National Guard records, to include by directly contacting his unit if necessary. The Board acknowledges that the record contains two positive nexus opinions that attempt to relate the Veteran's plantar fasciitis to service. However, neither opinion applies the right legal standard, and they are not adequate for the Board to make a decision on this issue. First, in an opinion form received December 2020, the Veteran's treating physician opined that the Veteran's plantar fasciitis is most likely caused by a limb length discrepancy that preexisted service, and explained that the "leg length discrepancy coupled with increased weight-bearing, running & jogging increases incidence and symptom severity of patient's plantar fasciitis symptoms." However, the Veteran is not service connected for his leg length discrepancy. As such, it cannot be used as a basis for granting service connection on a secondary basis or based on aggravation of the plantar fasciitis by the limb length discrepancy. Additionally, a September 2020 VA examiner opined that the Veteran's plantar fasciitis is at least as likely as not related to service because the onset in 2011 was during his time in the Reserves. However, the law is more restrictive regarding service connection for disabilities that begin while the Veteran is in the National Guard or Reserves. It is necessary to determine whether the Veteran's plantar fasciitis should be considered an "injury" or "disease," and to confirm whether it can be shown that the plantar fasciitis was incurred or aggravated during a period a period of active service in the line of duty. Thus, the Board also finds that it is necessary to obtain an addendum opinion on remand that addresses whether the onset of plantar fasciitis is properly considered an "injury" or "disease," and whether the plantar fasciitis was incurred or aggravated by active service in the line of duty, rather than during the general timeframe the Veteran was serving in the Reserves or National Guard. The matters are REMANDED for the following action: 1. Attempt to associate with the record all outstanding VA and non-VA treatment records. 2. Obtain the Veteran's complete service personnel records, to include all documents pertaining to his service in the Illinois National Guard and/or Air Force Reserve from 1989-2014. Document all requests for information as well as all responses in the claims file. 3. Identify all active duty for training and inactive duty training dates in October and November 2011. 4. Following the development in (1) through (3) above, obtain an addendum opinion from an appropriate clinician regarding: (a.) Whether the Veteran's plantar fasciitis diagnosis in October and November 2011 is medically considered an "injury" or "disease." (b.) Whether the Veteran's plantar fasciitis was incurred or aggravated during a period a period of active service in the line of duty. A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.