Citation Nr: 23040331 Decision Date: 07/24/23 Archive Date: 07/24/23 DOCKET NO. 19-26 811 DATE: July 24, 2023 REMANDED Entitlement to a right foot disability, to include pes planus and plantar fasciitis, is remanded. Entitlement to a left foot disability, to include pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2006 to July 2013, with service in the Southwest Asia theater of operations during the Persian Gulf War, specifically in Iraq from June 2007 to July 2008. The Board of Veterans' Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2023, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file. The hearing transcript reflects the Veteran's representative initially requested the record be held open for 60 days from the date of the hearing to allow the Veteran to obtain and submit medical records from a foot and pain clinic in Huntington, West Virginia. However, the Veteran subsequently testified that he tried to get these records himself, and that the facility was no longer in business, specifically that he went to the location, the place was empty, and the whole business was gone. He also testified he found out the doctor had retired but he could not remember the doctor's name. Thus, the Veteran's representative stated that an extension of 60 days was not needed, and again later in the hearing, reported that she did not want the record to be held open for 60 days. Therefore, as the Veteran reported these identified private medical records were not available and that further efforts to obtains such records would not be successful, the Board finds no further development is warranted to obtain such records. Additionally, in May 2023, the Veteran submitted additional relevant evidence. During the February 2023 Board hearing, Veteran waived initial Agency of Original Jurisdiction (AOJ) consideration of any new relevant evidence, developed by VA or otherwise, which was added to the record after certification and transfer of this claim to the Board, which encompasses the evidence he provided in May 2023. Thus, the Board may proceed with appellate review. 1. Entitlement to a right foot disability, to include pes planus and plantar fasciitis 2. Entitlement to a left foot disability, to include pes planus and plantar fasciitis The Veteran asserts service connection for a bilateral foot disability is warranted. Specifically, in February 2023 testimony, the Veteran reported he started having difficulty with his feet during service. The Veteran reported that he would go on runs and wonder how he was going to make it. He testified that that the pain was on the inside of the front of the heel where there was a soft tissue. He said as he was a medic working with the physician assistant, he took Toradol and got orthopedic inserts. He testified that he was "just self-treating because you're a medic. You're not thinking about documenting everything because you're going to get out one day and have an issue like this to deal with." He also generally testified that after service his feet related symptoms continued and had currently existed for 15 years. In terms of the appeal period for consideration, on August 22, 2018 VA received an application for benefits with a claim for service connection for a bilateral foot condition, to include pes planus. Thus, the appeal period for consideration is from August 22, 2018, date of receipt of the claim. Proximate to the appeal period, an October 2017 VA treatment record documented the Veteran complained bilateral foot pain (plantar fasciitis). The treatment record provided a relevant assessment of foot pain, indicated a referral to podiatry was provided, and that lidocaine gel was prescribed. An October 2017 right foot imaging documented there was no sign of fracture or dislocation and there was flexion at the distal interphalangeal joint. Thereafter, a January 2018 VA podiatry consult documented the Veteran presented with a chief complaint of a painful left heel, that it hurt first thing in the morning, and after he sat for a while and then got up. The January 2018 VA podiatry consult documented the Veteran was tender to palpate along plantar fascia attachment on the left heel, was given an injection in his left heel, and endorsed a diagnosis of plantar fasciitis of the left foot. A February 2018 podiatry outpatient note documented the Veteran presented for a follow-up of heel pain, his heel was not improving, and he still was tender to palpate at the plantar fascia attachment on the plantar medial left heel, was given an injection, and provided an assessment of plantar fasciitis. The February 2018 podiatry outpatient note clearly addressed the Veteran's left foot as the record documented this was a follow-up as to the prior complaint of plantar fasciitis of the left foot, and provided findings only as to the left foot. A June 2018 orthopedic consult also noted it was a consult for the Veteran's left shoulder, but the Veteran would like to be seen for his left foot, and that examination of his left foot revealed moderate pain over the left heel at the origin of the plantar fascia. The June 2018 orthopedic consult provided a diagnosis of left plantar fasciitis and documented he would be given an injection in the left plantar fascia origin. Further, although other VA treatment records, dated proximate to and during the appeal period, including dated in May 2018, August 2018, November 2018, and January 2019, listed as part of a current problem list, or as part of past medical history problem list, certain disabilities, including plantar fasciitis of left foot, and foot pain. Also, May 2018 and August 2018 VA treatment records also noted the Veteran had foot pain and was being followed by podiatry. During the appeal period, a January 2019 VA treatment record documented the Veteran reported pain as to his back and left foot. A March 2019 private medical record also documented the Veteran complained of left foot pain, that he reported a chronic history of plantar fasciitis, and as to an assessment, indicated the Veteran was admitted to prison without abnormal findings, and pain in unspecified foot, current, history of plantar fasciitis. Also, during the appeal period, the Veteran was afforded a VA examination in December 2018. The December 2018 VA examination report documented a diagnosis of left foot plantar fasciitis. In the negative medical opinion provided by the December 2018 VA examiner, the rationale included the statement that "since there is no diagnosis of plantar fasciitis until 2018, the Veteran's current left foot pain cannot be related to military service." However, the December 2018 VA examiner's finding there was no diagnosis of plantar fasciitis until 2018 is factually inaccurate. Specifically, an August 2014 VA examination report provided a diagnosis of bilateral plantar fasciitis. The Veteran separated from service in July 2013. The Board finds this factual inaccuracy to be significant enough to warrant a supplemental medical opinion. A supplemental medical opinion is also warranted to comment on the Veteran's report of wear and tear as to his feet in service and to identify whether any foot diagnosis may be a medically unexplained chronic multisymptom illness (MUCMI) as it may have an unknown etiology or pathophysiology. As a medical opinion has not been obtained to answer that question, remand is warranted to obtain one. The Board also observes that recently passed legislation provides that where a qualifying veteran, including a veteran with service in Iraq on or after August 2, 1990, submits a service connection claim with evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) during active military service and such evidence is not sufficient to establish service connection for the disability, the Secretary shall provide the veteran with a medical examination and secure a nexus opinion unless VA determines that there is no assertion that the claimed disorder is related to the TERA. See Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), Pub. L. 117-168, § 303 (to be codified at 38?U.S.C. §?1168). Here, the Veteran had service in Iraq from June 2007 to July 2008. 38?U.S.C. §?1117(f); 38 C.F.R. § 3.317(a). However, while the VA has an obligation to provide a VA examination for a qualifying service connection claim which cannot be granted where there is evidence of a TERA, an exception to this requirement exists where VA has determined that there is insufficient evidence demonstrating a relationship between toxic exposure and conditions such as blunt force trauma, repetitive use trauma, or penetrating trauma. Thus, the Board finds that an exception to the TERA examination requirements applies, and an additional examination is not warranted on this basis. See 38?U.S.C. §?1168(b). The matter is REMANDED for the following actions: 1. Please schedule the Veteran for a VA foot disorders examination and obtain the following medical opinions from an appropriate clinician regarding the Veteran's claim for service connection for a bilateral foot disability. (a.) Please identify all left and right foot disabilities by diagnosis or functional impairment; and (b.) As to each foot disability, is it at least as likely as not (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) that the foot disability is related to service, to include running and general wear and tear of his service duties as a health care specialist during his 7 years of active duty? Please note that bilateral plantar fasciitis was first diagnosed about a year after service separation in a 2014 VA examination. (c.) Please specify whether any foot disability is a medically unexplained chronic multisymptom illness (MUCMI), including addressing both etiology and pathophysiology as it relates to the Veteran. In other words, the clinician should answer the following questions: a. Does his foot disability have an etiology that is not even partially understood as it relates to the Veteran? And b. Does his foot disability have a pathophysiology that is not even partially understood as it relates to the Veteran? Please provide a detailed explanation for all answers provided. If an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.