Citation Nr: 1335613 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-05 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a right Achilles tendon strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active military service from February 1976 to February 1978, from October 2001 to September 2002, from February 2003 to February 2004, including various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA), and other service in the Texas National Guard from January 1985 to July 1988. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied a claim of entitlement to service connection for bilateral (left and right) Achilles strain, as well as claims to service connect obstructive sleep apnea (OSA), hypertension, plantar fasciitis, and multiple inguinal hernias. A claim of entitlement to a higher disability rating for bilateral hearing loss was also denied. The Veteran appealed the denials pertaining to the bilateral Achilles strain, OSA, plantar fasciitis, and hernias. In a September 2010 rating decision since issued, however, during the pendency of his appeal, the RO granted his claim of entitlement to service connection for left Achilles tendonitis. His remaining claims for right Achilles tendon strain, OSA, plantar fasciitis, and inguinal hernias continued to be denied in a concurrently issued Statement of the Case (SOC). He thereafter perfected his appeal of these remaining claims. In November 2012, in support of his claims, he testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. In March 2013, the Board granted service connection for multiple inguinal hernias. But the remaining claims, for right Achilles tendon strain, OSA, and plantar fasciitis, were remanded to the RO via the Appeals Management Center (AMC) for further development. Specifically, the Veteran was to be provided VA compensation examinations for each of these remaining disabilities, for medical nexus opinions regarding their etiologies, especially in terms of the likelihood they are related or attributable to his active military service. After completion of this additional development, the AMC granted service connection for the OSA and plantar fasciitis in May 2013. The concurrently issued Supplemental SOC (SSOC), however, continued to deny service connection for the right Achilles strain, so this claim is again before the Board for further appellate review and consideration. But still further development of this claim is required, unfortunately requiring another remand of this claim. The medical opinion obtained regarding this claim is inadequate, in that the VA examiner failed to provide the requested nexus opinion, which was the precise reason for previously remanding this claim in March 2013. Because the Veteran has the right to, at the least, substantial compliance with remand instructions, this claim again must be remanded so the necessary medical nexus opinion can be obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). REMAND Pursuant to the Board's prior March 2013 remand instructions, a VA compensation examination was to be scheduled for the purpose of providing a medical opinion on the determinative issue of whether the Veteran's right Achilles tendon strain is related to his service. The May 2013 VA examiner did not provide any comment on this issue, likely because the examiner did not diagnose a right Achilles strain following his evaluation of the Veteran. So, presumably, absent any then current indication of this claimed disability, there was no need to provide any opinion concerning whether it was related or attributable to the Veteran's service because, in the judgment of this VA examiner, it does not even exist. Other records in the file, however, show the Veteran has been diagnosed with right Achilles tendonitis during the pendency of this claim, for example, in a July 2009 treatment record from Willford Hall Medical Center. The presence of a disability at any point since the filing of the claim, even if now resolved, is sufficient to meet the current disability requirement for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, it is incumbent on the Board, pursuant to the Veterans Claims Assistance Act (VCAA), to obtain a medical opinion on the etiology of the Veteran's right Achilles tendonitis that was evident in July 2009, even though apparently not also when more recently examined for compensation purposes in May 2013. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2013). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Forward the claims file, including a copy of this REMAND, to the VA compensation examiner that performed the May 2013 examination for an addendum to his report - this time, however, indicating whether the Veteran's right Achilles tendonitis is related to or was aggravated by his active duty (AD) service or any period of ACDUTRA or INACDUTRA, including because of, so secondary to, his already service-connected residuals of bilateral ankle fractures. Following his previous examination of the Veteran, this VA examiner did not provide any comment on etiology, apparently owing to the fact that he did not make any diagnosis of right Achilles tendonitis, so presumably did not determine the Veteran had it, so had no reason to comment on its etiology. Since, however, there has been this diagnosis since the filing of this claim, when also considering the July 2009 treatment record from Willford Hall Medical Center, there has to be this comment on its etiology. If additional diagnostic testing or evaluation is needed to assist in making this important determination, then do it. The examiner must confirm his review of the claims file, including this REMAND, in his report. He is specifically requested to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's right Achilles tendonitis is related to or aggravated by his AD military service or any period of ACDUTRA or INACDUTRA. The examiner should also address whether the Veteran's right Achilles tendonitis is proximately due to, the result of, or alternatively aggravated by the Veteran's service-connected bilateral residuals of ankle fractures. The term "aggravated" in this context refers to a chronic or permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms, which resolve with return to the baseline level of disability. It is most essential the examiner discuss the underlying rationale of the opinion, if necessary citing to specific evidence in the file supporting conclusions. If, per chance, he cannot provide this requested medical nexus opinion without resorting to mere speculation, then also discuss why a more definitive response is not possible or feasible. Merely saying he cannot respond will not suffice. 2. Then readjudicate this remaining claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).