Citation Nr: 21005289 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-23 109 DATE: February 1, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left foot plantar fasciitis claimed as due to left total knee replacement surgery performed by VA in January 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1956 to January 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board remanded this matter in September 2016. The Board again remanded this matter in January 2018. The Veteran testified at a videoconference hearing before a different Veterans Law Judge in October 2017. That judge later retired. A transcript of the hearing is of record. The Veteran again testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2018. A transcript of the hearing is of record. The Board notes that in February 2020, the Veteran was sent a letter offering a third hearing before another Veterans Law Judge. The Veteran did not respond to this letter within the 30 days prescribed; therefore, the Board finds that the Veteran has declined a third hearing, and will proceed with the appeal. The Board remanded this matter again in May 2020. However, the Board finds that the RO did not substantially comply with the directives set forth in the May 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for left foot plantar fasciitis claimed as due to left total knee replacement surgery performed by VA in January 2010 is remanded. The Board is obligated by law to ensure that the RO complies with its directives; 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. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the May 2020 remand, a VA examination and medical opinion was obtained for the Veteran’s left foot plantar fasciitis claim. The Board directed that the VA examiner determine whether the Veteran’s left foot plantar fasciitis was due to his left knee replacement surgery and care provided by VA. The Board requested that the examiner the Veteran’s lay statements that he had an altered gait following surgery leading to his left foot plantar fasciitis, as well as statements and medical evidence showing that his left leg was shorter than the right leg following surgery. In a September 2020 VA examination, the examiner noted diagnoses left foot pes planus, left foot hallux valgus, and left foot plantar fasciitis. The Veteran said that he started experiencing bilateral foot issues after his left knee surgery in January 2010. He said that his left leg was shorter than the right leg and the overcompensating had caused disturbance in his gait, specifically his feet. In a separate September 2020 VA opinion, the examiner stated that the Veteran had left TKA which immobilized him for a few months. He was deconditioned and developed plantar pad atrophy of his left foot, as evident on medical records dated September 25, 2013. The Veteran started experiencing worsening pains after his biomechanics were altered completely following his left knee surgery. The examiner opined that there was no evidence of carelessness, negligence, lack of skill or other faulty evidence seen within the medical records. The examiner said that the Veteran had a successful left TKA in 2010, and per the lay statement and in the appeal, it was “quite evident” that the Veteran was happy with the result post left TKA. The examiner further opined that there was no additional disability that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The examiner said that the Veteran had a successful left TKA in 2010. The Veteran was noted to have normal postoperative recovery, but as his body adjusted to left TKA, he developed plantar fasciitis that continued to cause him problem 10 years later. The examiner said that as per the lay statement and in the appeal, it was quite evident that the Veteran was happy with the result post left TKA. The examiner also noted that there was no evidence of failure within the medical records. The examiner reiterated the prior rationale. The Board finds that it is unclear whether the examiner considered the Veteran’s lay statements that he had an altered gait following surgery leading to left foot plantar fasciitis or evidence of the left leg shorter than the right leg following surgery as the examiner did not address this evidence in the opinion. This is a Stegall violation. Therefore, the Board also finds the opinion inadequate as it is based on an incomplete factual premise. Therefore, on remand, an addendum VA opinion should be obtained regarding the etiology of the Veteran’s left foot plantar fasciitis. The examiner must address the Veteran’s lay statements and medical evidence of record, as stated above. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain an addendum VA opinion from an appropriate examiner to determine the etiology of the Veteran’s left foot plantar fasciitis. The claims file and a copy of the remand should be made available for review. Following a review of all pertinent evidence, the examiner should determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left foot plantar fasciitis was the direct result of VA carelessness, negligence, lack of proper skill, or erroneous judgment involving treatment attempted or afforded, for the Veteran’s left total knee replacement surgery in 2010. The examiner must address any altered gait and leg length discrepancy claimed to have resulted from the surgery. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left foot plantar fasciitis was proximately caused by an event not reasonably foreseeable by the Veteran’s left total knee replacement surgery. The examiner must address any altered gait and leg length discrepancy claimed to have resulted from the surgery. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran’s lay statements that he had an altered gait following surgery leading to his left foot plantar fasciitis. The examiner must also consider and discuss the statements and medical evidence showing that his left leg was shorter than the right leg following surgery. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.