Citation Nr: 1315079 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-05 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left leg or foot disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to June 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the appeal currently resides with the RO in Oakland, California. In August 2011, the Veteran testified at a video hearing before the undersigned Veterans Law Judge (VLJ) and a copy of the transcript of the hearing has been included in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In December 2012, the Board remanded the Veteran's case for the RO to issue a supplemental statement of the case (SSOC) with respect to the issue of service connection for a left leg disability (other than hallux limitus with degenerative changes) as the prior SSOC did not address the issue on appeal. An SSOC was issued in March 2013 and, therefore, the December 2012 remand instruction was completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the December 2012 remand also requested a clarifying medical opinion. Historically, in October 2011, the Board remanded the Veteran's claim to provide a VA examination to include an opinion as to the etiology of each left leg disability, including Achilles tendonitis and calcification. The examiner was asked to provide an opinion as to whether it is at least as likely as not that any diagnosed left leg disability was caused or aggravated by the Veteran's service-connected disabilities. The Veteran was provided a VA examination in March 2012. In part, the examiner opined that the symptoms of Achilles tendonitis resolved and, therefore, is less likely as not related to his knees, hips, or back. The Board found that the VA examiner's rationale for the opinion was inadequate. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement a current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). The issue was remanded for a clarifying medical opinion as to whether any left leg disability, to include Achilles tendonitis with calcification, was caused or aggravated by his service-connected disabilities. An addendum opinion was provided in February 2013. The examiner stated that he already addressed all the problems the Veteran had with his left leg. The examiner noted that he addressed the hallux limitus, hallux valgus, as well as the pes planus. The examiner opined that the Achilles tendonitis was less likely related to any service related condition which includes aggravation by a service connected disability since the Achilles tendonitis was not permanently worsened, and in fact resolved after time. However, the examiner did not address whether Achilles tendonitis might be directly related to service, even if it is no longer present. McClain v. Nicholson, 21 Vet App. 319 (2007). In addition, the examiner stated that he already addressed pes planus in the prior VA examination report. While this is true, the examiner merely noted that the pes planus existed, but was not symptomatic. The examiner did not provide an opinion with respect to its etiology. A remand by the Board imposes upon the Secretary of the VA a duty of compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the Board must remand for a new VA opinion for the purpose of determining service connection. Accordingly, the case is REMANDED for the following action: 1. Request an addendum opinion from the examiner who provided the opinions in March 2012, July 2012, and February 2013. The examiner should note review of the prior VA examination report and addendum opinions. The examiner should respond to the following: For Achilles tendonitis of the left leg or ankle, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability is related to active service. For pes planus of the left foot, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disability is related to active service. If pes planus is not found to be directly related to service, then the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's pes planus of the left foot was caused or aggravated by a service-connected disability (alone or in combination). The Veteran's service-connected disabilities include: bilateral knee degenerative joint disease, bilateral hip arthritis, left hallux limitus, and shortening of the right leg. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. A complete rationale should be given for any opinion provided. 3. After completion of the above, the RO/AMC should review the record and determine if service connection may be granted. The Veteran and his representative should be furnished an appropriate SSOC and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).