Citation Nr: 1317396 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-37 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot disability, claimed as secondary to the Veteran's service-connected chronic tendonitis and synovitis with degenerative arthritis of the right ankle. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to November 1957 and from January 1958 to July 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. When the case was most recently before the Board in March 2012 it was remanded for additional development. In his substantive appeal, the Veteran requested a Board hearing. A hearing was scheduled in February 2012. However, the Veteran submitted a statement in December 2011 canceling his hearing. He has not requested that the hearing be rescheduled. Therefore, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(d) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the March 2012 Board remand, the RO was instructed to return the claims file to the July 2008 VA examiner and obtain a medical opinion regarding whether the Veteran's service-connected right ankle disability aggravated his foot disabilities. If the July 2008 VA examiner was not available, the Veteran was to be afforded a new VA examination. The examiner was instructed to address whether it is at least as likely as not that any currently diagnosed foot disability had its onset during service or was caused by service. The examiner was also instructed to state whether it is at least as likely as not that any currently diagnosed foot disability was caused or aggravated by the Veteran's service-connected tendonitis and synovitis with degenerative arthritis of the right ankle. The Veteran underwent a new VA examination in April 2012. The April 2012 VA examination report reflects diagnoses of hammer toes and osteochondroma. The examiner opined that it is less likely as not that any currently diagnosed foot disability had its onset during or was caused by service. The examiner reasoned that recent treatment records fail to reveal that the Veteran has been seen for or been diagnosed with chronic foot problems, recent treatment records fail to reveal that the Veteran was continuously treated for chronic foot problems in service, and no medical evidence shows a link between the causation or onset of the current foot condition and military service. In January 2013 an addendum was obtained from the April 2012 VA examiner. The January 2013 report indicates that the claimed condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The examiner repeated the same rationale as found in the April 2012 VA examination report but added that hammer toes do not develop from ankle conditions. The examiner concluded that the Veteran's hammer toes are not caused or aggravated by his service-connected ankle condition. Initially, the Board notes that the examiner provided no rationale whatsoever for the opinion that the Veteran's hammer toes are not aggravated by his service-connected ankle disability. Therefore, the Board finds that the September 2012 VA examination report is inadequate for adjudication purposes. In this regard, a medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, a remand is required for a medical opinion regarding whether the Veteran's hammer toes are aggravated by his service-connected right ankle disability, which contains a complete rationale. Moreover, despite the diagnosis of osteochondroma found in the April 2012 VA examination report, the examiner provided no opinion regarding whether this foot diagnosis is caused or aggravated by the service-connected right ankle disability. As indicated above, the Board remand instructed the VA examiner to provide an opinion as to whether it is at least as likely as not that any currently diagnosed foot disability was caused or aggravated by the Veteran's service-connected right ankle disability. Therefore, the AOJ did not accomplish the objectives set forth in the March 2012 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). As such, a remand is required in order to obtain the requested opinions regarding the foot diagnosis of osteochondroma. Finally, the Board notes that the March 2008 and July 2008 VA examination reports reflect that Veteran was diagnosed with bilateral hallux valgus and bilateral plantar fasciitis. The July 2008 VA examination report contains opinions stating that these foot disabilities are not caused by the Veteran's service-connected right ankle disability; however, the examination report does not contain any opinion regarding whether these foot disabilities are aggravated by the service-connected right ankle disability. Although the April 2012 VA examiner did not diagnose the Veteran with bilateral hallux valgus or bilateral plantar fasciitis, these diagnoses were made during the pendency of the claim, and therefore, an opinion regarding whether either or both of these foot disabilities is aggravated by the service-connected right ankle disability is required. See, McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability in order for service connection to be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Such opinions can be obtained on remand. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If possible, the claims file should be returned to the VA examiner who conducted the April 2012 VA examination and provided the January 2013 addendum opinion. The examiner should provide the following opinions: Is it at least as likely as not (a 50 percent probability or more) that the Veteran's osteochondroma is caused or aggravated by his service-connected chronic tendonitis and synovitis with degenerative arthritis of the right ankle. Is it at least as likely as not (a 50 percent probability or more) that the Veteran's hammer toes, bilateral hallux valgus and/or bilateral plantar fasciitis is/are aggravated by his service-connected chronic tendonitis and synovitis with degenerative arthritis of the right ankle. Aggravation is defined as worsening beyond the natural progression of the disease. A complete rationale for any opinion offered must be provided. If the April 2012 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 2. When the above development has been completed, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran has had an adequate opportunity to respond, return the appeal to the Board for appellate review. 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).