Citation Nr: 22016017 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-16 623 DATE: March 21, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for lumbosacral strain is remanded. Entitlement to service connection for bilateral plantar fasciitis is remanded. REASONS FOR REMAND The Veteran had active service from May 2012 to June 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal of two separate rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO): an August 2017 rating decision that denied entitlement to a disability rating in excess of 20 percent for lumbosacral strain, and a March 2018 rating decision that denied entitlement to service connection of plantar fasciitis. The Board finds that both the Veteran's lumbosacral strain and bilateral plantar fasciitis claim should be remanded for additional development. 1. Entitlement to a disability rating in excess of 20 percent for lumbosacral strain is remanded. The Veteran was afforded a VA examination in relation to his lumbosacral strain in July 2017. The Board finds that this examination was inadequate. Lumbosacral strain is rated according to limitation of motion with consideration of functional loss due to factors such as pain, weakness, and/or incoordination, including during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) 38 C.F.R. §§ 4.40, 4.45, 4.71a. In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The July 2017 VA examiner did not provide an evaluation of the Veteran's lumbosacral strain during flare ups in a manner consistent with applicable law. The examiner documented the Veteran's reports of flare ups of his lumbosacral strain. 07/29/2017, C&P Exam, p. 3. However, the examiner did not provide any range of motion estimates or measurements of range of motion applicable during flare ups. The examiner provided no explanation for their lack of flare-up range of motion estimates. See 07/29/2017, C&P Exam, p. 7. Additionally, the Board notes that appropriate rating of spinal disabilities may include evaluation of, and potentially separate ratings for, objective neurologic abnormalities associated with the spinal disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The July 2017 VA examiner documented the Veteran's report of lumbar pain traveling to the right side, associated with numbness, tingling, and pain. 07/29/2017, C&P Exam, p. 2. However, the examiner went on to state that the Veteran did not have radicular pain or any other signs or symptoms attributable to radiculopathy. Id., p. 9. The examiner provided no rationale for whether or not they considered the Veteran's report of lumbar pain associated with numbness, tingling, and pain a sign or symptom attributable to radiculopathy. Generally, it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. On its face the July 2017 VA examiner's report fails to meet this standard. This is particularly critical in light of a July 2017 VA treatment note documenting treating providers' suspicion that the Veteran's reported right leg radiating pain was of "disc source." 08/16/2017, CAPRI, p. 1. In light of the foregoing, the Board finds that remand of the Veteran's lumbosacral strain claim is necessary. Finally, at his February 2021 Board hearing the Veteran testified that he was afforded a VA examination in January 2021. The case file does not reflect that any such examination was scheduled or conducted. On remand, the RO should ensure that all VA examination reports and medical opinions are properly associated with the claims file. 2. Entitlement to service connection for bilateral plantar fasciitis is remanded. As reflected in his February 2021 Board hearing testimony, the Veteran contends that he suffers from bilateral plantar fasciitis as a result of marching while carrying heavy equipment during his period of active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A February 2018 VA examiner documented a diagnosis of bilateral plantar fasciitis. 03/01/2018, C&P Exam, p. 3. However, the examiner went on to state that: "Postulating a nexus between the veteran's current bilateral foot condition and the POTENTIALLY [sic] injurious effects of his . . . duty activities cannot be done [without] resorting to mere speculation in the absence of any corroborating medical evidence (or even a subjective claim of foot pain as a symptom) in [service treatment records] including post-deployment . . . health assessment performed . . . after alleged onset of symptoms . . ." The Board finds this opinion inconsistent with applicable law. The Veteran is competent to report symptoms observable by his senses, such as foot pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). At his February 2021 Board hearing, the Veteran testified that he sought informal treatment from medics in his unit rather than report to sick call. 02/03/2021, Hearing Transcript, p. 16. As a general matter, the absence of evidence is not substantive negative evidence. Horn v. Shinseki, 25 Vet. App. 231, 239 n.7 (2012). Moreover, VA may use silence in the service treatment records (STRs) as contradictory evidence only if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the STRs. See Buczynski v. Shinseki, 24 Vet. App. 221, 225-26 (2011). In order to rely on this inference, the Board must make two findings. First, the Board must find that the STRs appear to be complete, at least in relevant part. If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms would ordinarily have been recorded had they occurred. Kahana v. Shinseki, 24 Vet. App. 428, 440 (U.S. 2011). Here, the Board cannot find that the STRs appear to be complete: there is no copy of any separation examination currently of record. Internal VA correspondence has been associated with the claims file reflecting difficulty obtaining the Veteran's complete STRs. However, no formal finding of unavailability has been made, nor was the Veteran informed of this. On remand, the RO should make additional attempts to obtain the Veteran's complete STRs, to include any separation examination; document all such attempts; and inform the Veteran of the outcome of these attempts and provide him with any opportunity to respond. In light of the foregoing, the Board finds that the Veteran's plantar fasciitis claim should be remanded to ensure that adequate attempts have been made to obtain the Veteran's complete STRs, to include separation examination; and to obtain an addendum opinion that addresses, in a manner consistent with applicable law, whether it is at least as likely as not that the Veteran's plantar fasciitis is the result of an event, injury, or occurrence during active service, to include in-service onset of the disability. The matters are REMANDED for the following action: 1. Verify that all available VA examinations have been associated with the claims file and obtain all available VA treatment records generated since February 2020. 2. Ensure that the Veteran's complete STRs have been associated with the claims file, to include any separation examination. If this information or documentation is unavailable this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his/her representative and they should be given an opportunity to respond. 3. Following the completion of remand directives 1 and 2, forward the claims file, including this remand, to the examiner who provided the July 2017 opinion relating to the Veteran's lumbosacral strain. If the July 2017 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should be requested to review the claims file and provide an addendum report that: (a.) estimates the Veteran's functional loss in terms of additional loss of range of motion, if any, due to reported flare-ups and repeat use over time as required by 38 C.F.R. §§ 4.40, 4.45, as interpreted by CAVC in Sharp. Inform the examiner that the Sharp decision contemplated the absence of ideal clinical or laboratory conditions under which empirical observation might be made. Instead, all that is required is that an examiner consider the claimant's lay reports, the evidence of record, and the findings on examination and then make an estimate (even if speculative to an extent). The examiner is also free to state their level of confidence in the estimate given, on a scale of 1 to 5, with 5 being the most confident and 1 being the least; and (b.) addresses range of motion during both active and passive motion and weight bearing and non-weight-bearing. Should the examiner maintain that they cannot provide the estimate of additional loss of range of motion during flare-ups or after repetitive use over time, then they must state whether it is due to the absence of the necessary training and experience in the medical community at large, or their personal lack of training and experience. If the former, a full explanation must be provided. If the latter, then the RO shall refer the claims file to an examiner with the requisite training and experience. The examiner should also opine as to whether their Sharp and Correia compliant test results can be applied retrospectively. If the new Sharp and Correia compliant test results can be applied retrospectively, the examiner should specify how far back. If possible, the examiner should opine as to the Veteran's thoracolumbar spine range of motion for the period from July 2017 onward. 4. Following the completion of remand directives 1 and 2, forward the claims file, including this remand, to the examiner who provided the February 2018 opinion relating to the Veteran's plantar fasciitis. If the February 2018 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to acknowledge that, as a matter of law, the Veteran is competent to report symptoms observable to his senses, such as pain. The examiner is reminded that the absence of recorded symptoms or disability in the Veteran's service treatment records is, by itself, an inadequate basis for returning a negative opinion. After having acknowledge the above principles, the examiner is asked to respond to the following: (a.) Whether the Veteran's plantar fasciitis is at least as likely as not related to an in-service injury, event, or disease, or whether it first had its onset during a period of active service. (b.) Whether the Veteran's plantar fasciitis is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.