Citation Nr: 1752775 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 05-18 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a bilateral foot disorder, to include heel spurs and arthritis. 2. Entitlement to service connection for a left knee disorder, to include consideration as being secondary to a bilateral foot condition. 3. Entitlement to service connection for an upper back condition, to include consideration as being secondary to a bilateral foot condition. 4. Entitlement to service connection for a bilateral ankle condition, to include consideration as being secondary to a bilateral foot condition. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD K. Underwood, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. The Veteran served on active duty from September 1958 to March 1959 and from January 1962 to April 1964. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The only issue at that time was entitlement to service connection for a bilateral foot disorder, to include heel spurs and arthritis. The Board issued a decision in December 2007 which denied service connection for the bilateral foot disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (CAVC). In October 2008, the Secretary of Veterans Affairs and the Veteran, through his attorney, filed a Joint Motion to vacate the Board's decision and remand the case for further development. The Court granted that motion in an order issued in November 2008. Thereafter, in January 2009, the Veteran and his attorney raised claims of service connection for a right foot neuroma, left knee disorder, low back condition, upper back condition, and a bilateral ankle condition, to include consideration as being secondary to a bilateral foot condition. In a decision of August 2009, the RO denied those claims. The claims for neuroma of the right foot and a low back disorder were denied on the basis that no new and material evidence had been presented to reopen those previously denied claims. The Veteran subsequently perfected appeals of those issues. These claims were previously before the Board in September 2012 and remanded for additional development. That development having been completed, this case was returned to the Board. In a September 2014 decision, the Board denied all of the Veteran's claims. The Veteran subsequently appealed to the Court again. In May 2015, the Secretary of Veterans Affairs and the Veteran, through his attorney, filed a Joint Motion to vacate the Board's decision and remand the case for further development. The Court granted that motion in an order issued in May 2015. In August 2015, the Board remanded all of the claims for an addendum opinion. The RO denied the claims in a September 2017 supplemental statement of the case. REMAND The Board regrets the additional delay of these matters; however a remand is required before the claims can be properly adjudicated. Bilateral Foot Condition A remand is required to afford the Veteran with an addendum opinion to the February 2017 and September 2017 VA opinions. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271. Here, the Veteran has alleged that he currently suffers from a bilateral foot disorder that is related to diagnosed bilateral foot stress fractures suffered in military service. The Board notes that the Veteran's service treatment records indicate that he suffered from bilateral stress fractures in October 1958. Additionally, the service treatment records indicate that during September 1958, the Veteran complained of painful heels with pain and tenderness on palpation of the oscalci medial and lateral in superior aspect. X-rays were negative for any abnormality. A service treatment record dated October 1958 indicated that the pain was less severe; however, x-rays showed sclerotic areas in both heels; and the diagnosis was bilateral stress fractures. A periodic service physical examination report dated in March 1962 indicates that the Veteran's feet were abnormal. Although records from this period of service are not available, the Veteran did have active duty for over two years from 1962 to 1964. See VBMS, 04/21/1958, Medical Treatment Record - Government Facility A., 4-6. The Veteran submitted four private medical opinions, which he believes provide a nexus between his current bilateral foot disorder and his stress fractures while in service. A November 2003 opinion from Dr. K. states that the Veteran suffers from post-traumatic arthritis as a result of a stress fracture he received in the military in 1958. An opinion from Dr. F. states that the Veteran suffers from post-traumatic arthritis from a stress fracture of the foot, which he sustained in the military in 1958. These opinions offer no bases or evidence for a connection between alleged arthritis in 2003 and bilateral stress fractures sustained 45 years prior. See VBMS, 04/28/2015, Medical Treatment Record - Non-Government Facility. The two other medical opinions submitted by the Veteran do not offer a nexus between the Veteran's current bilateral foot disorder and his bilateral stress fractures while in service. The opinion from Dr. S. states that the Veteran has had chronic feet and ankle problems as far back as his time in the military. The medical opinion from Dr. C. only offers that the Veteran had recently complained of severe foot pain due to a heel spur. Id. Two VA examiners came to conclusions directly contrary to the unsupported statements of the private medical examiners. They observed that, x-ray evidence fails to indicate the Veteran has arthritis. Additionally, the VA examiners did not find a nexus between the Veteran's current bilateral foot disability and his stress fractures incurred while in service. In a VA examination report dated October 2004 concerning the Veteran's feet, the Veteran reported that he had right foot pain which sometimes became so severe that he fell down; he had pain in his foot the entire time after service, but did not seek treatment until 1995; and he had a painful neuroma on his right foot, which was diagnosed in the mid 1990s. The examiner reported that x-rays revealed small plantar calcaneal spurs. Otherwise, the x-rays were within normal limits. The examiner therefore found no evidence of arthritis. The examiner diagnosed plantar calcaneal spurs and onychomycosis bilaterally (a fungal infection). The VA examiner went on to report that the Veteran's record was available and reviewed. The examiner describes evidence contained in the file reporting that the Veteran was diagnosed with stress fractures while in service in 1958. The examiner went on to state that there was no indication of injury to the Veteran's right foot and that it was therefore less likely than not that the Veteran's current bilateral foot condition was related to any service-related injuries. VBMS, 10/15/2004, VA Examination. The Veteran was afforded an additional VA examination on his joints in October 2004. The examiner adequately recounts the pertinent in-service medical history in the Veteran's claims file; that he has had stress fractures in both heels in 1958. The Veteran told the examiner that he had problems with standing or walking for long periods of time since service; even though he was a pharmacist until retirement at the age of 65. The Veteran complained only of right heel pain with walking or standing for long periods of time. An x-ray revealed minimal spurring of the medial malleolus with subcentimetric ossific density adjacent to the right lateral malleolus. The examiner diagnosed the Veteran with minimal degenerative changes in the right ankle by x-ray with normal physical examination bilaterally. The examiner stated that the Veteran's ankle condition was not caused by or did not result from his in-service stress fractures. Id. at 6. In the September 2012 remand, the Board asked that the examiner discuss any history of injury to the feet given by the Veteran, and to also address whether the stress fractures in service were consistent with a foot injury or simply resulted from the physical stress of military activities. The Veteran was afforded a post-remand VA examination for his feet in July 2014. At this examination it was noted that the Veteran was diagnosed with bilateral heel spurs with a finding of arthritis shown by x-ray. The examiner noted that the Veteran had been diagnosed and treated for bilateral stress fractures in military service. However, the examiner opined that it was less likely than not that the Veteran's current bilateral heel spurs with arthritis were related to the in-service diagnoses of bilateral stress fractures. In support of this conclusion, the examiner provided that the Veteran's current conditions were related to the natural aging process and biomechanical issues. There was no indication that the injuries suffered in service continued or developed into the current conditions. Rather it is noted that the stress fractures were separate from the currently diagnosed heel spurs and arthritis. Additionally, the examiner found that the Veteran's back disorder causes the manifestation of symptoms seen in the Veteran's feet. See Legacy Content Manager Documents, C&P Exam. In a September 2014 decision, the Board denied all of the Veteran's claims. Following this denial, the CAVC issued a joint motion for partial remand (JMPR). Here, the CAVC found that the Board erred by failing to ensure that the July 2014 examiner complied with the September 2012 remand. The JMPR found that the examiner did not discuss the Veteran's stated history of injury to the feet and did not explain whether the in-service stress fractures were consistent with his foot injuries or simply resulted from the physical stress of military activities. Thus, the opinion did not sufficiently address the prior remand directives. Further, regarding continuity of symptomatology, the examiner did not provide evidence that supported the conclusion of an onset of bilateral heel spurs with arthritis since the early 2000s. The CAVC found that the July 2014 examiner lacked adequate rationales for relating the Veteran's foot complaints to his back pain; associating mild osteoarthritis with the Veteran's age; and relating "biomechanical issues" to his plantar calcaneal spurs. The Board also did not explain why it found that VA medical opinions were more probative than the private opinions. As such, the August 2015 Board remand asked the July 2014 VA examiner for an addendum opinion. The remand directed a discussion by the examiner of relevant lay evidence and any history of injury to the feet that began in service to include whether his in-service stress fractures were consistent with a foot injury or simply resulted from the physical stress of military activities. The remand also instructed the examiner to provide supporting rationale for relating the Veteran's feet problems to his current back problems, as well as an explanation for how or what biomechanical issues the Veteran's plantar calcaneal spurs were related to. The VA examiner was requested to provide a full rationale, to include citations to relevant medical authority and literature where necessary, for all medical opinions provided. VA provided two brief addendum opinions after the Board's remand, in February 2017 and September 2017. The claims file shows that the July 2014 VA examiner was no longer available, therefore another examiner provided the opinion. In February 2017, a VA examiner explained that "biomechanical issues" refer to the way the foot works, how one joint functions, and how it affects other joints/structures. He also noted that biomechanical issues are only theories as to why heel spurs form. The examiner also clarified the statement that "all complaints of the foot can be related to his current back problems" rather than his feet, by stating that "all the neuronal innervation of the foot come out of the low back. Also depending on how the foot positions itself, the low back could compensate for the foot position." See VBMS, Legacy Content Manager Documents, 02/28/2017, C&P Exam. In September 2017, the same examiner further clarified what he meant in opining that all the neuronal innervation "come out of the low back." He stated that because the Veteran had normal feet, if the feet postured incorrectly, due to any malady in the superstructure, the next weakest segment would be where he might have symptoms. The examiner found that "if the Veteran compensated in the low back, he could get symptoms in the feet." See VBMS, Legacy Content Manager Documents, 09/13/2017, C&P Exam. Additionally, in September 2017, the same examiner stated in an email message that, "foot complaints in service were, in my opinion, due to his low back issue." (VBMS, 09/12/2017, Email Correspondence). While the examiner's rationale addressed the August 2015 remand's directive to explain the relationship between the feet and the back conditions, he did not follow the remainder of the remand's instructions, pursuant to Stegall. Specifically, the examiner did not address the history of injury to the feet, to include any chronic foot and ankle problems that began in service, and failed to state whether the in-service stress fractures were consistent with a foot injury or simply resulted from the physical stress of military activities. Lay statements were also not considered. Thus, the medical examination report did not contain a reasoned medical explanation connecting examiner's conclusions. Left Knee, Bilateral Ankles, and Upper Back As the claims for service connection for left knee, upper back, and bilateral ankle conditions secondary to the bilateral foot disorder are inextricably intertwined with the claim for service connection a bilateral foot disorder, remand of these claims is also required. See e.g. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991). Additionally, any VA treatment records should be obtained and associated with the file on remand. 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinksi, 2 Vet. App. 611 (1992). All ongoing private treatment records should also be obtained and added to the claims file. See 38 U.S.C.A. § 5103A (a)(1), (b)(1), (c)(1) (West 2014). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The RO should make the entire Veteran's claims file available, to include a complete copy of the REMAND, to the examiner who conducted the February 2017 and September 2017 VA addendum opinions or, if that examiner is no longer available, an examiner of like experience and training, to proffer an addendum opinion. The examiner is asked to discuss any history of injury to the feet given by the Veteran, to specifically include his assertions of chronic feet and ankle problems that began in the military and have continued causing problems with standing and walking to present, and should also address whether the stress fractures in service were consistent with a foot or back injury or simply resulted from the physical stress of military activities. If the Veteran's assertions of the onset of pain/ continuity of symptomatology are found inadequate, provide evidence and a rationale that support that conclusion. Such addendum opinions should include citations to any relevant medical authority and examples from the Veteran's medical history in support. The examiner should also consider any lay statements of record from the Veteran. 2. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided a supplemental statement of the case (SSOC). Then the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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) (2017).