Citation Nr: 22018258 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-36 817 DATE: March 28, 2022 REMANDED Entitlement to service connection for left foot plantar fasciitis is remanded. Entitlement to service connection for a right foot disability to include plantar fasciitis, right second toe fracture, and surgical treatment is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 15, 1981, to October 25, 1983, and the United States Air Force from October 9, 2007, to March 4, 2008, from April 1, 2008, to July 18, 2008, from August 3, 2008, to August 2, 2014, from August 3, 2014, to November 15, 2014, from July 22, 2016, to November 30, 2016, from December 1, 2016, to December 30, 2016, and from February 15, 2017, to January 23, 2018. The Veteran also served in the United States Air National Guard from November 2004 to November 2018. This matter comes before the Board of Veteran's Appeals (Board) on appeal of a June 2016 rating decision by the Department of Veteran's Affairs (VA), Reginal Office (RO). In May 2019 and September 2021, the Board remanded the case to the RO for additional development. With apologies to the Veteran, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims for service connection. The Board, however, has been frustrated in its efforts to obtain an adequate record to reach a decision by the VA examiners' lack of compliance with the Board's remand directives. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board's prior remands discussed in detail and directed new VA examinations with opinions and rationale that will allow the Board's decision to be a fully informed one. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Once again, however, despite detailed remand instructions, the Board is prevented from its decision because the latest VA examinations do not provide sufficient rationale for the Board to rely upon for a decision. First, the Board's September 2021 directed VA obtain opinions from a podiatrist or a physician with sufficient expertise, to help determine the likely etiology of the Veteran's right and left foot plantar fasciitis disability. On remand, contrary to the Board's remand directives, a nurse family medicine practitioner, not a podiatrist or physician, provided the opinions. Secondly, in reviewing the opinions, the Board finds the opinions still do not provide the Board with the information to make a fully informed decision. The Board requested opinions as to whether the Veteran clearly and unmistakably had plantar fasciitis before she started active duty in October 2007. A treating clinician's note diagnosed bilateral plantar fasciitis in September 2007 and again three days before she entered active duty. At that time, the Veteran reported she had been diagnosed with plantar fasciitis two years earlier. The remand also directed the medical opinions to address whether service clearly and unmistakably aggravated the bilateral plantar fasciitis. The nurse practitioner stated after the diagnosis the Veteran underwent surgeries to correct the plantar fasciitis condition. The Veteran underwent surgeries in December 2007 (for the right foot) and in February 2009, May 2013, and January 2014 (all for the left foot). Based upon the Board's review, however, the surgeries all appear to be for a separate condition, neuromas that developed in the spaces between her toes. (The Veteran is already service connected for the neuromas of both feet and the postsurgical residual reflex sympathetic dystrophy). Thus, the record does not seem to support the nurse practitioner's statement about surgeries to correct and alleviate plantar fasciitis. The nurse practitioner also concluded that the Veteran's bilateral plantar fasciitis resolved after surgical treatment and therefore service did not permanently aggravate the bilateral fasciitis. This also does not appear correct even if the surgeries are related to both the neuroma conditions and plantar fasciitis. As noted, she had right foot surgery in 2009. In July 2012 (a period of active duty) her treating podiatrist diagnosed right foot plantar fasciitis after she twisted her left ankle on stairs and came down hard on her right heel. Thus, there is a question as to whether active-duty service aggravated the plantar fasciitis. In addition, the September 2021 remand directed that the new opinion reconcile the previous opinions of record that conflicted as to whether active service caused or aggravated the bilateral plantar fasciitis. The Veteran has submitted evidence that wearing combat boots, prolonged standing, and the performance of her service duties caused the bilateral fasciitis. The December 2021 opinion attempted to reconcile the prior conflicting opinions but again relied upon the conclusion that the plantar fasciitis resolved after the Veteran's surgeries. Finally, the VA examiner never discussed the right second toe fracture. Accordingly, the Board once again has determined the Veteran's claims must be remanded to obtain opinions to assist the Board to make a fully informed decision. Before that occurs, however, further record development is needed. As noted, the Veteran entered the Air National Guard in November 2004. By history to her podiatrist in 2007, she may have developed plantar fasciitis two years earlier. As such, service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ADT) or inactive duty for training (IADT) or a disease incurred or aggravated while performing ADT. 38 U.S.C. §§ 101(24), 106. It does not appear records identifying ADT or IADT periods before October 2007 have been associated with the file. Therefore, upon remand, the Agency of Original Jurisdiction (AOJ) should obtain records or information to verify appropriate periods of ADT or IADT. The Board notes that leave and earning statements (LESs) often indicate duty status in explaining pay and should be considered if there is a need to verify a specific period of ADT or IADT. These records could help inform the new VA opinion as to whether service caused the plantar fasciitis including as due to wearing combat boots, prolonged standing, training, and other duties caused or resulted in the plantar fasciitis or whether the toe fracture occurred during ADT or IADT. Ongoing medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to her bilateral feet claims. 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. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Request National Guard records from the appropriate source(s) which demonstrate the Veteran's ADT and IADT before October 2007. All actions to obtain the requested records should be clearly documented in the claims file. The Appellant should be notified of the unavailability of any records 3. Obtain the Veteran's LESs or review the LESs and compile a list of when she served on ADT and IDT. All attempts to verify service dates in this manner should be documented in the file. The Appellant should be notified of the unavailability of any records. 4. After records development is completed, the claims file should be sent to an appropriate a PODIATRIST, if available or from A PHYSICIAN WITH SUFFICIENT EXPERTISE to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral plantar fasciitis and residual of a toe fracture onset during service or is otherwise related to an in-service injury, event, or disease, to include combat boots, prolonged standing, and the performance of her service duties. The examiner must discuss whether combat boots, prolonged standing, and the performance of service duties caused the disabilities identified not only during her regular active-duty periods but also any identified periods active duty for training and inactive active duty for training. In offering the opinion, the examiner is asked to consider the following facts: 1. The Veteran served on active duty from May 1981 to October 1983. 2. In November 2004, the Veteran entered the Air National Guard which entailed periods of active duty for training and inactive active duty for training. 3. Starting in October 2007, the Veteran entered regular active-duty periods: October 9, 2007, to March 4, 2008, from April 1, 2008, to July 18, 2008, from August 3, 2008, to August 2, 2014, from August 3, 2014, to November 15, 2014, from July 22, 2016, to November 30, 2016, from December 1, 2016, to December 30, 2016, and from February 15, 2017, to January 23, 2018. 4. The first recorded diagnosis for bilateral plantar fasciitis occurred in September and early October 2007 with the Veteran reporting she had been diagnosed with plantar fasciitis two years earlier. 5. The Veteran also fractured her right second toe in May 2007 when she dropped something on her toe. One record called it a suitcase, and another called the item an air flight bag. The examiner is asked to provide the following information: (a) Identify all diagnosed foot disabilities since October 2007. (b) For each foot disability, to include left and right foot plantar fasciitis and residual for the right toe fracture, please address the following: (i) Is there clear and unmistakable evidence that such disability preexisted regular active-duty service? (ii) If a foot disability (e.g., the Veteran's left and right foot plantar fasciitis and the right toe fracture) is determined to have pre-existed the Veteran's service, is there clear and unmistakable evidence that the pre-existing disability WAS NOT aggravated (worsened beyond natural progression) during service. (iii) The examiner must reconcile and discuss the October 2015, January 2020, October 2020, and December 2021 examinations and private medical opinions, specifically with respect to the Veteran's left and right foot plantar fasciitis and explain how any diagnosed disability resolved or no longer show any pathology. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell P. Veldenz, 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.