Citation Nr: 21029550 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-28 348 DATE: May 13, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to an initial compensable rating prior to March 30, 2016, and in excess of 10 percent thereafter, for a right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2002 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a left foot disability. The Veteran also appeals an April 2016 rating decision that granted service connection for a right foot disability and assigned a noncompensable disability rating prior to March 30, 2016, and a 10 percent rating thereafter. In November 2018 and October 2019, the Board remanded the Veteran's claim for service connection for a left foot disability to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Specifically, the Board remanded for opinions related to direct and secondary theories of service connection. The claim is back before the Board for further appellate proceedings. 1. Entitlement to service connection for a left foot disability is remanded. In its October 2019 remand, the Board explained that the Veteran's left foot disability was described specifically as plantar fasciitis. The August 2019 VA examiner had not adequately explained why the Veteran's service-connected right foot disability was a separate and unrelated disability. The Board noted that more specificity was required to explain why they are unrelated. Thus, the Board remanded for a new examination. A VA clinician provided a new opinion as to the Veteran's plantar fasciitis in December 2019. See December 2019 VA examination report. The clinician again opined that the right foot disability and left foot disability were separate and unrelated. Id. The clinician provided materially the same rationale as the August 2019 examiner, which the Board found inadequate in its October 2019 remand. Id. Thus, it remains inadequate here. In April 2020, the Veteran was afforded a new bilateral foot examination. See April 2020 VA examination report. The examiner noted that the Veteran has no symptoms of plantar fasciitis. Id. Rather, the examiner diagnosed the Veteran with bilateral pes planus and "bilateral great toe." Id. In a sentence, the examiner stated that these diagnoses are also unrelated to the right foot disability. Id. Despite finding that the Veteran does not have a diagnosis of plantar fasciitis, the examiner opined that there is no evidence that the Veteran's plantar fasciitis was permanently aggravated beyond its natural progression. Id. The examiner also completed a section related to aggravation of a disability that existed prior to service; the evidentiary record does not support an indication that the Veteran had plantar fasciitis prior to service. Id. The examiner's opinion is conclusory without adequate rationale. The Board finds the examination inadequate for adjudicative purposes. Thus, a new examination is required on remand. 2. Entitlement to an initial compensable rating prior to March 30, 2016, and in excess of 10 percent thereafter, for a right foot disability is remanded. The Veteran's representative has argued that the VA examinations do not properly describe the impairment associated with the Veteran's right foot disability during flare-ups. See April 2017 notice of disagreement. The Veteran was most recently afforded a VA examination in April 2020. The examiner noted that the Veteran did not have flare-ups. See April 2020 VA examination report. In April 2016, a VA examiner noted that the Veteran did have flare-ups but did not opine as to the impairment caused by the flare-ups. See April 2016 VA examination report. The examiner explained that commenting on the impairment would be mere speculation. Id. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2019). As such, a new examination is necessary on remand. Id. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral foot disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 above has been completed, schedule the Veteran for an examination to determine the nature and etiology of his left foot disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all left foot disabilities present during or proximate to the appeal period. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's left foot disability was incurred in, or is otherwise related to, his time on active service, to include documented foot pain therein? B. Is it at least as likely as not that the Veteran's left foot disability, was (a.) caused or (b.) aggravated by his service-connected right foot disability? The examiner is to discuss the Veteran's diagnoses of record, to include bilateral plantar fasciitis, bilateral pes planus, and "bilateral great toe." The examiner is also to discuss the effect, if any, of the Veteran's allegation that the Veteran's left foot disability was caused by overcompensating due to his right foot disability. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in #1 above has been completed, schedule the Veteran for appropriate examinations to determine the current nature and severity of his right foot disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.