Citation Nr: 22019497 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 07-15 493 DATE: April 1, 2022 REMANDED Entitlement to service connection for a bilateral foot disorder, to include as secondary to the Veteran service-connected painful corns and lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1978 to August 1980. The Veteran had periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA) in the U.S. Army National Guard from September 1980 to May 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board denied the claim. The Veteran appealed the Board decision to the Court of Appeals for Veterans' Claims (Court). In an April 2018 Joint Motion for Partial Remand (JMPR), the Court vacated the Board decision and remanded the Veteran's appeal to the Board. The Court found the Board had erred in narrowly considering the Veteran's claim without consideration of a March 2014 diagnosis of plantar fasciitis. The Court directed the Board to consider whether the Veteran's plantar fasciitis is a current disability for which service connection is warranted. In November 2018, July 2020, April 2021, and again in August 2021, the Board remanded the appeal to the RO for additional action in accordance with the JMPR. The requested development has not been satisfactorily completed, and additional development is required. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). The Board's prior remands required opinions as to the nature of any foot disabilities other than the already service connected painful corns, to include hammer toe, painful scars, plantar fasciitis and foot cramping. As noted in the JMPR, a diagnosis of plantar fasciitis is indicated in the March 2014 VA examination report and painful toes were described by the Veteran in a March 2015 statement and on her July 2015 notice of disagreement. The examiner was also asked to provide an opinion as ot the etiology of any foot disability present, to include determining whether the foot disability is related to the Veteran's active service or caused or aggravated by the service-connected painful corns. In May 2019, the Veteran provided a statement indicating that she does not recall ever having foot pain until the time of her service and that she has had bilateral foot pain since service. A July 2019 VA examiner then diagnosed several foot disorders, but made no mention of the plantar fasciitis. The Board remanded the issue in September 2019 for a clarifying opinion. In December 2019, the same VA examiner confirmed the presence of mild degenerative changes of the right DIP joints and left MTP joint, plantar callus, and foot cramps, along with the already service-connected corns. The examiner found plantar fasciitis was not present. The Board then remanded the matter in July 2020 requesting an opinion as to the etiology of the plantar fasciitis that was deemed present during the pendency of this claim (March 2014). An October 2020 VA opinion indicated the plantar fasciitis is not related to the Veteran's active service, because there is no indication of plantar fasciitis in service. The same examiner provided another opinion in January 2021, which found there to be no causal connection between corns and plantar fasciitis. In a February 2021 brief, the Veteran, through her representative, raised the issue of the competency of the January 2021 VA examiner, a VA Nurse Practitioner, and contended that the January 2021 VA medical opinion was inadequate, and therefore, not substantially compliant. The representative pointed out the Veteran's statement indicating she had no foot pain prior to military service, but that it initially onset in service and has continued ever since. The Board then remanded the matter in April 2021 and the RO adjudicator was advised that when a challenge to an examiner's competence is presented, VA must respond to that contention by demonstrating the examiner's competence. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Alternatively, another VA examination or responsive opinion may be obtained. The April 2021 Board remand requested that the Veteran be scheduled for a VA examination with a VA podiatrist. Further, the examiner was asked to provide a brief curriculum vitae as to his or her medical qualifications. In June 2021 the Veteran was afforded an examination with a physician assistant, and the examiner's curriculum vitae was not provided. The August 2021 Board remand again requested an opinion from a VA podiatrist regarding the Veteran's foot condition. An opinion was provided in January 2022; however, the examiner was noted to be a gynecologist, and no curriculum vitae as to the examiner's medical qualifications was provided. Therefore, another opinion must be obtained pursuant to the Board's previous remand directives. Also in August 2021, the Veteran submitted a statement suggesting her foot disability is related to her back disability, which is now service-connected. The RO has not addressed this contention. Finally, the Board notes no VA examiner has considered the Veteran's May 2019 statement related to her history of symptoms. For these reasons, while the Board sincerely regrets the additional delay, this matter must again be remanded. The matter is REMANDED for the following action: 1. Obtain an opinion from a VA podiatrist. The examiner must review the Veteran's claims file, including the prior remands, all relevant medical and non-medical records, and the Veteran's lay statements. The examination report should specifically state that such a review was conducted. If examination of the Veteran is necessary to provide the requested opinions, such should be arranged. The examiner must: (1) Provide a brief curriculum vitae as to his or her medical qualifications; and (2) Provide a comprehensive explanation for all opinions as to these questions: (a) Was the Veteran's bilateral foot disorder, other than the already service-connected painful scars, caused by the Veteran's in-service reports of foot trouble? (b) Was the Veteran's bilateral foot disorder caused or aggravated by her service-connected painful corns, or her service-connected back disability? Although the examiner must review the file, his or her attention is drawn to the following: - In a March 1979 service treatment record, the Veteran reported experiencing bilateral foot irritation due to boots rubbing on her feet. The Veteran was assessed with bilateral foot corns and boot irritation. - In a July 1979 service treatment record, the Veteran reported experiencing bilateral foot toe blisters. The Veteran was assessed with blisters. - A 2004 article titled "Plantar Fasciitis and the Windlass Mechanism: A Biomechanical Link to Clinical Practice" reflects that plantar fasciitis can be evaluated and treated using the windlass mechanism model which can describe plantar fascia abnormalities in terms of overpronation and under pronation to help formulate possible relationships between conditions and treatments. - A 2005 article titled "Common Foot Disorders" reflects information about three of the most common foot conditions seen by primary care physicians in the ambulatory setting, to include bunion, plantar fasciitis, and Morton's neuroma. - The Veteran's May 2019 statement indicating that she had no foot pain prior to service, but that it began in service and has continued ever since. If the examiner dismisses this lay report of symptoms, an explanation as to the reason for not considering this statement should be provided. - A December 2019 article titled "Plantar Fasciosis" reflects general information about the foot disorder, symptoms, diagnosis, and treatment. - A May 2020 VA treatment record indicating that the Veteran's bilateral foot high arches and pain were related to plantar fasciitis. - The Veteran's December 2020 statement suggesting symptoms of her bilateral foot disorder are causally connected to her now service-connected back disability. The examiner must provide separate findings and rationales relating to causation and aggravation. The examiner is advised that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). A complete rationale must be provided for any opinion rendered. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, Associate 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.