Citation Nr: 1754713 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-16 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a left foot disability. 2. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to October 1974 and from February 1984 to April 1985. The Veteran had additional service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This case was previously before the Board in February 2017, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. REMAND The Board finds at that further development is necessary before the claims on appeal are decided. In the February 2017 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of his left foot and left ankle disabilities. A review of the record shows that the Veteran was afforded the directed examinations in April 2017. At that time, the VA foot examiner diagnosed small bony exostosis of the left mid foot region and opined that it was less likely than not caused by active service. In this regard, the examiner noted that the disability was diagnosed when the Veteran was a child and it was not aggravated by service. In this regard, the examiner noted that a 2003 magnetic resonance imaging scan correlated with a childhood foot condition. The April 2017 VA ankle examiner diagnosed left ankle arthritis and opined that it was less likely as not related to service, to include the MCA during such. In this regard, the examiner noted that treatment records were not indicative of a significant ankle injury during service or following the MCA. The examiner was of the opinion that the ankle disability was the result of the Veteran's occupation and age. The Board finds that the April 2017 VA opinions are not adequate for adjudication purposes. In this regard, the examiner did not appear to consider the Veteran's lay statements regarding onset and continuity of his symptoms. Further, the examiner did not adequately address whether the Veteran's left foot and ankle disabilities were aggravated by a service-connected disability. As the opinions are not adequate, they cannot serve as the basis of a denial of entitlement to service connection. For those reasons, the Board finds that the development conducted does not comply with the of the February 2017 remand. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Veteran should be afforded new VA examinations to determine the nature and etiology of any currently present left foot and left ankle disabilities. Additionally, current treatment records should be identified and obtained prior to a final decision in this appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present left foot disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should identify any and all diagnoses of left foot disabilities and make a determination as to whether the identified left disabilities are a disease, a defect, or are the result of an injury. In determining whether a condition is a defect, as opposed to a disease or injury, the examiner should consider that the term "disease" is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term "defects" are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. Once all diagnoses have been identified and characterized as a disease, defect, or the result of an injury, the examiner should provide the following opinions: a) Did the Veteran have a left disability (a disease or a disability resulting from injury ONLY, not defect) that clearly and unmistakably existed prior to his active service? If so, was any pre-existing left foot disability (a disease or a disability resulting from injury ONLY) clearly and unmistakably not aggravated during active service? b) For any left foot disability determined to be a defect, is it at least as likely as not (50 percent or better probability) that the Veteran developed superimposed left foot pathology as a result of his active service, to include chronically worsened by a service-connected disability? c) With regard to any diagnosed left foot disability not found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability is related to active service. d) With regard to any diagnosed left foot disability not found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the disability was caused or chronically worsened by a service-connected disability. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran or provided an opinion in this appeal, to determine the nature and etiology of any currently present left ankle disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present left ankle disability is etiologically related to the Veteran's active service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently present left ankle disability was caused or chronically worsened by a service-connected disability. 4. Confirm that the VA examination reports and any medical opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).