Citation Nr: A25035147 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210630-169313 DATE: April 16, 2025 REMANDED Entitlement to service connection for right foot plantar fasciitis, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for left foot plantar fasciitis, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1980 to May 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the January 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the June 2021 VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the January 2021 decision on appeal and prior to the date the Board received the June 2021 VA Form 10182, or (2) more than 90 days following the date the Board received the June 2021 VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims for service connection for left and right foot plantar fasciitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for right foot plantar fasciitis, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to service connection for left foot plantar fasciitis, to include as secondary to service-connected disabilities, is remanded. The issues of entitlement to service connection for left and right foot plantar fasciitis are remanded to correct a duty to assist error that occurred prior to the January 2021 rating decision on appeal. In this regard, although the Agency of Original Jurisdiction (AOJ) obtained a VA examination to address the nature of the Veteran's claimed bilateral foot pathology, the accompanying etiological opinions are inadequate to decide the claims. In this regard, the examining VA clinician concluded that the Veteran's "plantar fasciitis is less likely than not related to" his back and knee conditions, reasoning that a review of "orthopedic literature" does not support that "one joint's disease... cause[s] damage to others." See January 2021 VA Medical Opinion Disability Benefits Questionnaires (DBQs). ? However, the January 2021 VA examination report failed to address the issue of whether the Veteran's plantar fasciitis was aggravated by his service-connected back and bilateral knee conditions. Instead, the examiner simply checked the boxes indicating that the Veteran's "claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition[s]." See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (finding that a VA opinion addressing secondary service connection was inadequate as it did not address the issue of aggravation); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (reflecting that, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability); 38 C.F.R. § 3.310. The Board notes that the Federal Circuit has since held that 38 C.F.R. § 3.310(b) is inconsistent with 38 U.S.C. § 1110. Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023). Secondary service connection is warranted where a nonservice-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. Id. This is especially important given the Veteran's suggestion that his service-connected back and knee conditions have resulted in an alteration of his gait, which has affected his "body alignment" such that his foot pain has increased in severity. See October 2020 Veteran's Application for Disability Compensation (VA 21-526EZ) As such, remand for a new VA examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated); 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). The matters are REMANDED for the following action: Schedule an appropriate VA examination to assist in determining the nature and etiology of the Veteran's claimed left and right foot plantar fasciitis. The examination should be scheduled with a clinician who has not already provided an opinion in this case, if possible, and may be conducted via telehealth or similar service if deemed necessary. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file, including a complete copy of this REMAND, has been reviewed. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose. Additionally, the examiner must review the Veteran's full history by conducting a complete review of the claims file (including all available service treatment records, VA examination reports, private and VA medical treatment records, and lay statements and submissions) and should document the Veteran's reports regarding his medical history in the examination report. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available service records, medical treatment records, and lay statements and submissions record), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current foot disorders found to be present. In so doing, the examiner must consider and address the diagnoses of record. As to each foot disorder identified on examination or diagnosed during the pendency of the claim, to include plantar fasciitis, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any diagnosed foot disorder was either (a) caused by, or (b) aggravated by any service-connected disability, to include the Veteran's back and knee conditions, including as the consequence of any gait alterations resulting from those disabilities. NOTE: With respect to the question concerning aggravation, the examiner is advised that aggravation does not require that there be "permanent worsening" of the nonservice-connected disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In providing these requested opinions, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.