Citation Nr: 1751540 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 06-28 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a left foot disability, to include hallux valgus with bunion deformity. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1986 to December 1989, from August 2001 to April 2002, and from February 2003 to January 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In December 2011, the Board remanded the claim for additional development. The case now returns to the Board for appellate review. In a July 2017 rating decision, the RO granted service connection for hallux valgus, with bunion deformity and degenerative changes of distal and proximal interphalangeal joints, right foot. As the July 2017 decision represented a full grant of the benefit sought, the issue of entitlement to service connection for a right foot disability is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, further development is necessary prior to the adjudication of the issue on appeal. The Veteran is seeking service connection for a left foot disability. Specifically, the Veteran contends that he started experiencing left foot pain during service as a result of his military occupancy specialty (MOS) as a diesel mechanic, which required him to be on his feet and move around a lot. The Veteran alternately contends that wearing combat boots for hours during service caused his left foot disability. In this regard, the Board notes that the evidence of record includes an October 2008 private opinion from Dr. Daniel Janiak (Dr. Janiak) diagnosing the Veteran with hallux valgus bilaterally, requiring surgery, activated by combat boots and weight bearing; and a July 2014 private opinion from Dr. Dane K. Wukich (Dr. Wukich) diagnosing the Veteran with severe bunions; wearing boots and being on his feet twelve to sixteen hours having contributed to or aggravated the condition. The Board, however, finds the October 2008 and July 2014 private opinions of little probative value. The opinions do not provide adequate rationales such that an award of service connection may be made at this time. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion. . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") The evidence of record otherwise includes a November 2015 VA examination report and a July 2017 VA examiner addendum opinion in which the examiners opined that the Veteran's left foot disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board, however, finds the November 2015 and July 2017 VA examiner opinions inadequate. The examiners did not address the private medical opinions from Dr. Janiak and Dr. Wukich in rendering their opinions. As this evidence may aid in substantiating the Veteran's claim for service connection for a left foot disability, the Board finds that an additional VA examiner opinion is needed before the adjudication of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate); see also Stefl, 21 Vet. App. at 125 (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran, if necessary, for a VA examination to determine the nature, etiology, and date of onset of the Veteran's left foot disability. The examination/opinion should be administered by a physician with suitable expertise for the purpose of determining the etiology of any left foot disability. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed left foot disability is related to the Veteran's active service or to any injury sustained while on active duty for training or inactive duty for training? The examiner should discuss the complaint of foot pain documented in the Veteran's STRs and the private opinions from Dr. Janiak and Dr. Wukich. The examiner should also discuss the Veteran's contentions that his left foot disability is related to stress fractures as a result of wearing combat boots for hours during service and constantly being on his feet while working as a diesel mechanic. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter 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.S. §§ 5109B, 7112 (LexisNexis 2017). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252 (LexisNexis 2017), 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) (2017).