Citation Nr: 1338887 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 10-19 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bilateral foot calluses. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board hearing in his May 2010 substantive appeal. However, in November 2010 the Veteran indicated that he no longer wanted to testify at a Board hearing. As such, the Board deems his request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2013). 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 The Veteran seeks entitlement to service connection for bilateral foot calluses, which he claims began in service and never resolved following service. In March 1968, the Veteran was seen on two occasions for a callus on the sole of his right foot. Although there was no evidence of infection, the area was noted to be tender and the Veteran was placed on light duty. On his July 1969 Report of Medical History at separation, the Veteran indicated that he had "foot trouble," but did not specify the precise nature of that trouble. VA treatment records show treatment for calluses/hyperkeratosis since 2006. The Veteran was provided with a VA examination in April 2010, at which time he was diagnosed as having painful callus formations on the plantar surfaces of his bilateral feet at the metatarsal heads. The Veteran was also diagnosed as having bilateral hammertoes, although the examiner opined that these were not related or secondary to his callus formations. The examiner found no evidence of a skin condition or orthopedic condition that would cause the callus formations, as the Veteran's service treatment records were not made available to the examiner. As there was no radiographic evidence indicating that an orthopedic condition caused the calluses, the examiner opined that the calluses were more likely caused by increased friction/pressure between the metatarsal heads and the shoe surface due to the Veteran's foot architecture. Since the Veteran's claims file was not reviewed by the VA examiner in April 2010, the RO requested that he issue an addendum opinion following a review of the claims file. The July 2011 addendum opinion noted that there was no evidence indicating in-service treatment for calluses of the Veteran's left foot, although the complaint of a foot condition found on his July 1969 Report of Medical History may have been in reference to the right foot, the left foot, or both feet. As such, the examiner concluded that he could not give an informed opinion without resorting to mere speculation with respect to the left foot based on this evidence. With respect to the Veteran's right foot, the examiner indicated that the March 1968 treatment note was "poor" and that it did not provide any details regarding the right foot calluses. The examiner also noted that the Veteran served in the military for an additional year without further care for right foot calluses. Nonetheless, the examiner concluded that he was also unable to give an informed opinion without resorting to mere speculation with respect to the right foot based on this evidence. In his October 2013 Appellant's Brief, the Veteran's representative argued that the April 2010 VA examination report and the corresponding July 2011 addendum opinion were inadequate due to the fact that they failed to provide an etiological opinion. The United States Court of Appeals for Veterans Claims (Court) has held that, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Court also has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). The Court has explained that opinions which contain the "mere speculation" language, without more, amount to "nonevidence" neither for nor against the claim because service connection may not be based on speculation or remote possibility. See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). When a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010); see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). Before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Cf. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009). Therefore, it must be clear from either the examiner's statements or the Board's decision that the examiner has considered "all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. See Daves v. Nicholson, 21 Vet. App. 46 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. Given the foregoing, the Board finds that, because the VA examiner's opinion was stated in terms of speculation and did not provide any explanation of his opinion other than citing to the inadequacy of the service treatment records, this examination report is inadequate for VA purposes. See also 38 C.F.R. § 4.2. Specifically, it is not clear that the VA examiner considered all procurable and assembled data, such as the Veteran's lay statements regarding continuity of symptoms since service, the lack of medical care for bilateral calluses for decades following service separation, and the examiner's own previous conclusion in the April 2010 VA examination report that the calluses were caused by the Veteran's "foot architecture." Thus, on remand, the Veteran should be scheduled for an updated VA examination which addresses the contended etiological relationship between his bilateral foot calluses and active service without resorting to mere speculation. Accordingly, the case is REMANDED for the following action: 1. Obtain, and associate with the file, all VA treatment records for the Veteran from the North Texas VA Health Care System dated from November 2010 to the present. All attempts to obtain these records must be documented in the claims file. 2. Schedule the Veteran for an appropriate examination to determine the current nature and probable etiology of his bilateral foot calluses. The examination should be conducted by an examiner other than the examiner who conducted the Veteran's April 2010 VA feet examination and the corresponding July 2011 addendum opinion. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history of his claimed bilateral foot calluses, if possible. Based on a review of the Veteran's claims file and the results of his physical examination, the examiner is asked to opine whether it is at least as likely or not (a 50 percent probability or more) that any current bilateral foot calluses were caused by service or are otherwise related to service. When offering an opinion the examiner should consider the Veteran's lay statements as well as the service medical records showing some complaints regarding the feet and calluses on the right foot. In providing an answer to the above question, the examiner is advised that the term at least as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. A complete rationale must be provided for any opinions expressed. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, then the Veteran and his service representative should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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).