Citation Nr: 23018352 Decision Date: 03/23/23 Archive Date: 03/23/23 DOCKET NO. 19-10 250 DATE: March 23, 2023 REMANDED Entitlement to service connection for a right foot disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a left foot disability, to include secondary to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from September 1974 to July 1975. This matter is before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the appeal period the Veteran was previously represented by an attorney, who filed a motion to withdraw his representation in October 2019 which was confirmed by VA in December 2020. The Veteran has not elected additional representation and is proceeding without representation. As a final preliminary matter, the Board notes that the file contains November 2018 and March 2019 motions to advance the case on the docket (AOD) based on financial hardship. In support of this motion, the Veteran submitted documentation of multiple utility bills and mortgage statements which were overdue and also stated that he had been affected by a hurricane. An AOD motion may be granted if, among other factors, the Veteran is under "severe financial hardship." 38 U.S.C. § 7107 (b); 38 C.F.R. § 20.902 (c). At this time, the Board finds the submitted evidence sufficient to demonstrate financial hardship. Accordingly, the Veteran's AOD motion is granted at this time. See id. The Veteran's claims were remanded by the Board in January 2020 for addendum opinions that considered the Veteran's claims that his right and left foot disabilities were caused by or aggravated by his service-connected lumbar disability. The requested actions have been undertaken however the examinations are inadequate. Accordingly, there has not been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). During the pendency of the appeal, the AOJ granted service connection in a November 2022 rating decision for degenerative disc disease, major depressive disorder, obstructive sleep apnea, left leg radiculopathy, and right leg radiculopathy. That award constitutes a full grant of the disabilities sought, and those appeals have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). Entitlement to service connection for a right foot disability, to include as secondary to a service-connected disability Entitlement to service connection for a left foot disability, to include as secondary to a service-connected disability The Veteran contends his left and right foot disabilities are due to active-duty service, or in the alternative, due to his service-connected lumbar disability. The Veteran received a VA examination in September 2022 for his right and left foot disabilities, which included medical opinions on both direct and secondary service connection. The medical opinion noted the Veteran's left big toe ingrown toenail reported in 1974. The examiner diagnosed bilateral plantar fasciitis (PF), noted that this condition was not diagnosed in service and that there were no complaints of foot pain in service, and therefore opined that this condition did not begin in service. The examiner relied on the lack of documentation of a foot disability in service and relied on the Veteran's reports of his foot disabilities starting in 2000. The examiner also found the Veteran's right and left foot disabilities were not due to or caused by his service-connected lumbar disability because the feet and back are not medically related and found them to be separate entities entirely. The examiner indicated that review of evidence-based peer-reviewed medical literature failed to show a causal relationship. As for aggravation, the examiner found that the right and left foot disabilities were not aggravated by the Veteran's lumbar disability as they are not medically related. The Board finds the medical opinions to be inadequate for VA purposes as they are conclusory and rely on the absence of contemporaneous in-service evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd 1039, 1043-44 (Fed. Cir. 1994). Although delay is regrettable the Veteran is entitled to a remand for addendum medical opinions for his service-connection claims and substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The matters are REMANDED for the following action: 1. The Veteran's file should be forwarded to an appropriate clinician. The examination should be with a different examiner than the examiner who provided the September 2022 medical opinions. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect that these items were available for review. The examiner should address the following: (a.) Please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's bilateral plantar fasciitis manifested during, or as a result of, active military service. The examiner must address the Veteran's 1974 left big toe ingrown toenail treatment. (b.) Please opine as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the bilateral plantar fasciitis was either 1) caused by, or 2) aggravated by, the Veteran's service-connected lumbar disability. Aggravation means to have caused any increase in severity. Secondary service connection is also warranted where a non-service-connected disability would have been less severe but-for a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability. Separate opinions are required for causation and aggravation. The examiner should address all relevant lay statements provided by the Veteran. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner should fully explain why this is the case and identify what, if any, additional evidence, or information might allow for a more definitive opinion. 2. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record, perform any necessary development, and readjudicate the claim on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Veteran and his representative an opportunity to respond, and return the case to the Board. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teich, 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.