Citation Nr: 1622890 Decision Date: 06/07/16 Archive Date: 06/21/16 DOCKET NO. 08-29 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for bilateral foot disorder to include hallux valgus, an "algre" foot condition and a left foot nerve condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1975 and from January 1991 to March 1991. He also served in the reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2010, February 2012, December 2012, and October 2013, the Board remanded the listed issue for additional development. Additional issues were perfected for appeal, but the Board decided those issues in December 2012 and October 2013 and they are no longer for consideration. This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND On review, additional development is needed. See 38 C.F.R. § 3.159(c) (2015). In a statement received in July 2014, the Veteran reported he was receiving benefits from the Social Security Administration. Records pertaining to any award of disability benefits are potentially relevant to the appeal issue and should be requested. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Updated VA medical center records should also be obtained on remand. The Veteran underwent a VA foot examination in September 2011. Diagnosis was bilateral hallux rigidus. The examiner opined that the disorder was less likely than not related to any service-connected issue as there was no injury or trauma to the feet while he was enlisted. In December 2012, the Board noted the examiner failed to acknowledge the Veteran's report of foot trouble on a report of medical history form completed in March 1991 nor did he consider the Veteran's reports of foot trouble since service. An additional examination was requested. The examiner was directed to consider the Veteran's lay statements and to reconcile and discuss the opinion with all other opinions of record, including the September 2011 opinion. The Veteran underwent another VA examination in January 2013. The claims folder was not available for review. The examiner provided a negative etiology opinion based on the following rationale: There is no history to suggest that his hallux rigidus is post-traumatic in nature. This is not associated with boot wear. There is no correlation between his boot wear and service activity to his hallux rigidus. In the absence of a specific injury to his 1st [metatarsophalangeal] there is no reason to think this is post-traumatic in nature. In October 2013, the Board found that the January 2013 VA examiner did not comply with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Thus, the Board requested a supplemental opinion. The examiner was requested to provide an opinion as to whether any bilateral foot disability was related to the Veteran's active service, including wearing boots. In making this determination, the examiner was directed to comment on the March 1991 report of foot problems and to specifically consider the Veteran's statements regarding in-service symptoms and continuity of symptoms following service. Additionally, the examiner was to reconcile and discuss the opinion with all other opinions of record, including the September 2011 VA opinion. In November 2015, a VA physician reviewed the claims folder and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The following rationale was provided: While the patient was noted to have pain while in the service, there is no evidence of specific diagnosis at that time or currently that can be related to boot wear. The patient clearly and undeniably has bilateral hallux rigidus currently, but this is a degenerative disease unrelated to prior injury, as there is no evidence in the record of 1st [metatarsophalangeal] joint injury. It is possible the patient may have had early hallux rigidus while in the military service, but this would not have been due to boot wear, just simply made symptomatic from boot wear. The patient would have hallux rigidus regardless of boot wear. In April 2016, the representative specifically referenced the examiner's statement that it was "possible" the Veteran had early hallux rigidus in service. The representative also submitted an internet article indicating that hallux valgus may result from an injury to the toe or from differences in foot anatomy that increase stress on the joint. The representative argued that service connection should be established and in the alternative, additional VA examination was warranted. On review, the Board finds further development warranted. First, the above opinion does not substantially comply with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999) (it is substantial compliance with remand orders that is required in order to meet the obligations of Stegall). While the report acknowledges the in-service complaints, it fails to consider the reports of continuing symptoms and does not specifically address and/or reconcile the prior opinions of record as directed. Second, the physician's statement referenced by the representative is speculative in nature and is not based on the appropriate evidentiary standard. Accordingly, the case is REMANDED for the following action: 1. The RO is directed to: * Request records from the Social Security Administration pertaining to any award of disability benefits. * Request medical records from the VA Medical Center in Memphis, Tennessee for the period from January 2013 to the present. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Return the November 2015 VA medical opinion for addendum. If the November 2015 VA physician is no longer available, the requested information should be obtained from a similarly qualified VA physician. An additional physical examination is not necessary unless specifically requested by the reviewing physician. The physician is to be provided access to the claims folder, the VBMS file, the Virtual file and a copy of this remand. The examiner must specify in the report that these records have been reviewed. The physician is requested to review the claims folder and opine as to whether it is at least as likely as not that any bilateral foot disorder to include hallux rigidus first manifested during active service or is otherwise related to active military service or events therein, to include physical fitness training, road marches, and/or boot wear. The physician must specifically answer the question as posed herein and should not merely check a box on the disability benefits questionnaire. The physician is to address the Veteran's report of foot trouble on the report of medical history completed at separation in March 1991 as well as his report of continued foot pain since that time. The physician is advised that while the Veteran is not competent to state he had hallux rigidus since service, he is competent to report that he had foot pain at separation and continuing to date. The physician is further advised that while the absence of corroborating clinical records may NOT be the determinative factor, the terms competent and credibility are not synonymous. The physician must address and reconcile the prior opinions of record (September 2011 and January 2013). Additionally, the physician must consider and address the article submitted in April 2016 titled Stiff Big Toe (Hallux Rigidus), which indicates that the condition "may result from an injury to the toe that damages the articular cartilage or from differences in foot anatomy that increase stress on the joint." A complete rationale for any opinion expressed must be provided. 3. After the development requested has been completed, review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his/her consideration of Virtual VA, to include identifying the date range of Virtual VA records reviewed. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. If a physical examination is requested, the Veteran is to be notified that it is his responsibility to report and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, readjudicate the claim of entitlement to service connection for a bilateral foot disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be given an appropriate opportunity 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 2014). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).