Citation Nr: 21010619 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-46 049A DATE: February 25, 2021 REMANDED 1. Entitlement to service connection for a lower back disability is remanded. 2. Entitlement to service connection for a left ankle disability is remanded. 3. Entitlement to service connection for left foot plantar fasciitis is remanded. 4. Entitlement to service connection for right foot plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1986 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference hearing in October 2019 and a transcript of this hearing is of record. Because the Veteran testified before a Veterans Law Judge who is no longer with the Board, the Veteran was afforded the opportunity for another hearing; however, he did not elect an additional hearing before the Board. Accordingly, the Board will proceed without further delay. These issues were previously remanded by the Board in February 2020. As discussed below, further development is warranted.   1. Entitlement to service connection for a lower back disability is remanded. The Veteran contends that he injured his back in service and he has continued to suffer from a lower back disability since that time. The Veteran originally underwent a VA examination in September 2014. The Veteran had minor back complaints in service, none of which the examiner would expect any residuals from. The examiner noted that he had a normal spine examination, with an MRI which showed disc bulging, but the examiner opined this is much more likely due to an interval event than his minor back complaint in service 20 years ago. The Veteran underwent a second VA examination in February 2020. The examiner stated that the Veteran’s lumbar disc disease and spondylosis are not related to events in service because there are no service records indicating a chronic lower back condition and the Veteran denied recurrent lower back pain on separation. The examiner then noted that the Veteran was involved in a motor vehicle accident in 1998 and had no functional impairment from 1998 until 2008, during which time he was active, until he was involved in a second motor vehicle accident in 2008. Additionally, the examiner noted that disc disease and accompanying arthritis are common age-related developments. Most recently, in September 2020, the Veteran submitted a private medical nexus opinion by John W. Ellis, MD. Dr. Ellis opined that it is more likely than not that during the exercise training the Veteran injured his back. He stated that the mechanism of injury is described in the history and was requiring an extensive use of the abdominal back muscles to perform the procedure which caused straining and tearing and popping of the tendons in the lower back. Additionally, Dr. Ellis noted that driving trucks and the vertical up and down bouncing caused stress of the muscles and tendons. As such, he opined that it is more likely than not that these injuries in the service have contributed to instability in the lower back which more likely than not caused traumatic arthritis and impinging the discs in the back have caused impingement of the spinal nerves. Notably, the positive opinion by Dr. Ellis did not address the Veteran’s post-service motor vehicle accidents, and it was based upon a telehealth visit which appears to be based on the Veteran’s subjective report rather than a review of the claims file. Nevertheless, the Board finds that the positive opinion is enough indication that the Veteran’s back disability may be associated with active service to warrant an addendum opinion on remand to properly reconcile the conflicting medical opinion evidence of record. 2. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends that he injured his left ankle in service. The Veteran originally underwent a VA examination in September 2014. The examiner stated that the Veteran had minor ankle injuries in service, none of which examiner would expect any residuals from, and a normal ankle examination and imaging tests. In February 2020, the Veteran underwent a second VA examination. The examiner stated there is no evidence of a left ankle condition and no treatment records indicating a chronic left ankle condition, and the examiner noted that primary care notes from 2003 to 2011 are absent for any chronic left ankle condition. More recently, the Veteran submitted a private medical nexus opinion by John W. Ellis, MD, in September 2020. Dr. Ellis opined that it is more likely than not that the Veteran’s sprained ankles in Germany caused straining and tearing of the talofibular ligaments of the lateral aspect of both ankles, causing instability in the left ankle. Given the conflicting medical nexus opinion evidence of record, the Board finds that remand is warranted to obtain an addendum VA opinion. Additionally, the Board is mindful that pain resulting in functional impairment can be considered a disability for VA compensation purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Notably, the Veteran has claimed that he suffers from pain in his left ankle; however, it is unclear whether the results in functional impairment of earning capacity. Moreover, the positive opinion by Dr. Ellis appears to be based largely on the Veteran’s subjective reports during a telehealth visit rather than a review of the claims file. Nevertheless, the Board finds that the positive opinion is enough indication that the Veteran’s claimed left ankle disability may be associated with active service to warrant an addendum opinion on remand to properly reconcile the conflicting medical opinion evidence of record. 3. Entitlement to service connection for left foot plantar fasciitis is remanded. 4. Entitlement to service connection for right foot plantar fasciitis is remanded. The Veteran contends that he developed bilateral plantar fasciitis in service and that he continues to suffer from bilateral plantar fasciitis. The Veteran first underwent a VA examination in September 2014. The examiner stated that the Veteran has mild plantar fasciitis which was recently newly diagnosed; however, the examiner opined that there was no nexus to any in-service foot complaint. Again, the Veteran underwent a VA examination in February 2020. The VA examiner opined that the Veteran’s bilateral plantar fasciitis is not related to events that occurred in service. The examiner noted that there are no service records indicating chronic plantar pain and the Veteran was not diagnosed with plantar fasciitis in service. The examiner noted that the Veteran was seen once in January 1986 and the impression was rule out plantar fasciitis; however, there were no further entries regarding plantar fasciitis. Finally, the examiner noted that the Veteran was later diagnosed with plantar fasciitis 21 years after service. More recently, the Veteran submitted a private medical nexus opinion by John W. Ellis, MD, in September 2020. Dr. Ellis opined that it is more likely than not that the stress of wearing combat boots and the stress of training caused pain in the arches of both feet, which further caused loosening of the tendons and the joint capsules in the arches of both feet and flattening of the arches of the feet and plantar fasciitis. Given the conflicting medical nexus opinion evidence of record, the Board finds that remand is warranted to obtain an addendum VA opinion. Notably, the Veteran’s service treatment records demonstrate that he was diagnosed with plantar fasciitis in service, which contradicts the February 2020 VA examiner’s opinion. Additionally, the positive opinion by Dr. Ellis appears to be based largely on the Veteran’s subjective reports during a telehealth visit rather than a review of the claims file. Nevertheless, the Board finds that the positive opinion is enough indication that the Veteran’s bilateral plantar fasciitis may be associated with active service to warrant an addendum opinion on remand to properly reconcile the conflicting medical opinion evidence of record. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for his back, left ankle, and bilateral plantar fasciitis. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. 2. Provide the claims file to a qualified VA examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current lower back disability had its onset during active service or is otherwise related to active service. In offering the opinion, the examiner is asked to specifically consider the September 2020 private nexus opinion by Dr. Ellis, as well as the Veteran’s post-service motor vehicle accidents. If the VA examiner states that an in-person examination is warranted in order to provide the requested opinion, including a supporting rationale for this decision, then schedule the Veteran for an in-person VA medical examination, with adequate prior notice of the examination date and location sent to the Veteran and his representative. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Provide the claims file to a qualified VA examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the claimed left ankle disability had its onset during active service or is otherwise related to active service. In offering the opinion, the examiner is asked to specifically consider whether the Veteran’s lay reports of left ankle pain result in functional impairment, as well as the September 2020 private nexus opinion by Dr. Ellis. If the VA examiner states that an in-person examination is warranted in order to provide the requested opinion, including a supporting rationale for this decision, then schedule the Veteran for an in-person VA medical examination, with adequate prior notice of the examination date and location sent to the Veteran and his representative. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Provide the claims file to a qualified VA examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the current bilateral plantar fasciitis had its onset during active service or is otherwise related to active service. In offering the opinion, the examiner is asked to specifically consider the September 2020 private nexus opinion by Dr. Ellis. (Continued on the next page)   If the VA examiner states that an in-person examination is warranted in order to provide the requested opinion, including a supporting rationale for this decision, then schedule the Veteran for an in-person VA medical examination, with adequate prior notice of the examination date and location sent to the Veteran and his representative. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, Attorney Advisor 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.