Citation Nr: 21031860 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-62 417A DATE: May 24, 2021 REMANDED Entitlement to service connection for a left foot condition, to include a heel condition is remanded. Entitlement to service connection for a right foot condition, to include a heel condition is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from August 1981 to February 1982 for active duty training. In her December 2017 substantive appeal, the Veteran requested a video conference hearing. In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Regrettably, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Entitlement to service connection for a bilateral foot condition, to include a heel condition is remanded. The Veteran contends that she is entitled to service connection for a bilateral foot condition, to include a heel condition. Review of service treatment records indicated that no disqualifying defects were observed on physical examination at enlistment, in June 1981. In a report of medical history, bearing the same date, the Veteran reported that she was in good health. She denied any problems with foot trouble. In the comments section, the Veteran noted a previous fracture to the left ankle in 1979. No residual symptoms or conditions were reported. Four months later, she was treated for moderate to severe left ankle pain with swelling in October 1981. Recurrent symptoms persisted for the previous 3 months. The Veteran was granted a profile for 1 day. Over-the-counter aspirin was prescribed to treat pain. X-rays of the bilateral ankles yielded normal findings. During a separate clinical evaluation, the Veteran reported a left ankle fracture 2 years earlier. A possible diagnosis was listed as distal tibiofibular syndesmosis (TFS) or muscle strain. Range of motion was within normal range. No recent history of trauma was noted. Physical therapy clinical note, dated October 1981, indicated that the Veteran was treated for bilateral foot pain. Treatment included use of a heating pad to relieve frequent bouts with overnight swelling. Despite her complaints of symptoms, the Veteran was found fit for active duty. In December 1981, a troop clinic record noted complaints of bilateral ankle pain. A physical examination found no evidence of edema or redness. Mild tenderness to the touch was observed along the dorsum area, bilaterally. The diagnostic impression listed tendonitis. The examination record document two previous visits for the same symptoms. She was referred for follow-up treatment. The same month, a medical clinic record listed right ankle pain over a 6-week period. A mild sprain was suggested. An evaluation in the orthopedic brace shop suggested that the Veteran's assigned footwear was misfitted in December 1981. Post service treatment records show that the Veteran has current diagnosis of bilateral lower extremity degenerative arthritis and plantar fasciitis. In September 2020, the Veteran was evaluated for pain in the bilateral feet over several months. Progressive symptoms with ambulation was noted. The Veteran described her pain as aching. Prescribed treatment included rest and regular use of orthotic inserts. The Veteran reported persistent symptoms dating back to active service. Specifically, she reported foot pain due to prolonged walking in boots during physical training. The Veteran contends that she was previously advised that her pain likely resulted from heel spurs. Current symptoms include pain upon rising from bed in the morning and with prolonged standing. Vascular testing revealed dorsalis pedis and posterior tibial pulses rated as a 2 on a 4-point scale, bilaterally. X-ray films of the bilateral feet revealed soft tissue, accessory bones, and bone density within normal range. The diagnostic impression listed current diagnoses of bilateral degenerative arthritis and plantar fasciitis. In July 2015, the Veteran underwent a VA examination. No current diagnosis was indicated. In her substantive appeal, dated December 2017, the Veteran suggested that the July 2015 VA opinion was inadequate. Specifically, she asserts that the examiner ignored her lay contentions regarding chronicity of symptoms and continuity of symptomology. Moreover, the examiner quoted Wikipedia in support of the findings and conclusions reached. No cites or reference to a review of relevant medical literature was indicated. The Veteran further states that the examiner was not competent to provide a medical opinion as the examiner's credentials merely included an Associate degree from a Community College. During a September 2020 Board hearing, the Veteran reported an onset of bilateral foot pain due to strenuous physical training. At enlistment, a previous fracture to the left ankle reportedly occurred in 1979. No residual symptoms were indicated, and the Veteran was deemed qualified for active service. During basic training in 1981, she contends that heavy boots were regularly worn while performing physical training and drills. Noted activities included prolonged walking, marching, and running. According to the Veteran, a drill sergeant recommended medical treatment due to her complaints of bilateral foot and ankle pain. Following a physical examination, a diagnosis of heel spurs was suggested. Nevertheless, the Veteran continued basic training and Advanced Individual Training (AIT) school. Since separation, the Veteran has continued to endure bilateral foot, heel, and ankle pain. Pain impacts her ability to work overnight shifts as a certified nursing assistant (CNA). According to the Veteran, her pain is worse upon rising in the morning. To treat pain, she endorsed use of orthotics and replacing her gym shoes once per month. Other treatments include visits to the podiatry clinic and physical therapy. In 2015, the Veteran was afforded VA examination. No current diagnosis was indicated. According to the Veteran, pain and pressure impacts her ability to climb stairs, perform yard work, and stand for prolonged period. She states that she has fallen arches and flat feet. The Veteran endorsed a recent diagnosis of plantar fasciitis with use of cortisone shots to treat pain. The Veteran also suggested that the 2015 VA examination was inadequate. Specifically, she contends that the examiner failed to consider her lay assertions and used references to Wikipedia to justify the conclusions drawn instead of commonly reviewed or cited medical literature. On review of the record, the Board agrees that the July 2015 VA examination was inadequate. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiner failed to specifically consider or address the Veteran's lay contentions regarding the onset of symptoms or its chronicity since separation. Further, the examiner provided a negative nexus opinion based on references to Wikipedia rather than a review of commonly accepted medical literature. A VA examination is inadequate where the examiner fails to fully consider the lay evidence of record. Miller v. Wilkie, 32 Vet. App. 249 (2020). Additionally, the Board observes that multiple suggested diagnoses were noted in service treatment records or as well as VA medical records, indicating current diagnoses of bilateral degenerative arthritis and plantar fasciitis. Similarly, the Board notes that where pain without a diagnosed underlying condition amounts to a functional impairment of earning capacity, pain alone can be a current disability. Saunders v. Wilkie, 886 F.3d 1356, 1364, 136768 (2018). The examiner failed to address this theory of entitlement. Consequently, on remand, a new VA examination is required to determine the nature and etiology of the Veteran's bilateral foot condition, to include a heel condition, considering the record evidence and commonly accepted medical principles. 38 C.F.R. § 3.159 (c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of the Veteran's bilateral foot condition, to include a heel condition, to include consideration of pain as a disability. The Veteran's claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. The examiner should identify whether a diagnosis of a bilateral foot, heel, or ankle disability is found and note the evidence in support thereof. Thereafter, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability), that the Veteran's bilateral foot condition, to include a heel condition, was incurred in or otherwise causally related to active service, to include as due to in-service treatment for bilateral foot and ankle pain. As a part of the examination and/or opinion, the examiner must consider all prior diagnoses in the record and nexus opinions and explain or distinguish any variations in findings and conclusions. Additionally, the examiner should assume that the Veteran is a credible historian. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of the STRs, medical evidence of record, and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information, or evidence would allow for a more definitive opinion. If the examiner finds that a current diagnosis of a bilateral foot, ankle, or heel condition is not warranted, then the examiner must explain this in the context of the diagnosis recorded in the Veteran's VA medical records. The examiner is further advised that when there is pain without a diagnosed underlying condition that amounts to a functional impairment of earning capacity, pain alone can be a current disability. Saunders v. Wilkie, 886 F.3d 1356, 1364, 136768 (2018). The examining physician/specialist should provide information to demonstrate that he or she is qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation). This information is to be associated with the Veteran's claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). 2. Thereafter, re-adjudicate the Veteran's claims. If any benefit sought remains denied, provide the Veteran with a supplemental statement of the case and an adequate opportunity to respond before returning the matter to the Board for further adjudication, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims to be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, Counsel 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.