Citation Nr: 1803414 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-29 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a nerve disorder of the feet, claimed as peripheral neuropathy of the bilateral feet. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to February 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified during a hearing before the undersigned Veterans Law Judge in April 2012. A transcript of the hearing is of record. The appeal was last remanded in August 2017 for additional development. Regrettably, more development is necessary and the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay, following two similar remands, however, as the mandates of those remands have not yet been followed, a remand is again required. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). In its August 2017 remand, the Board found that an earlier, November 2016 VA examination was inadequate. The Board found that the examination report suggested that the Veteran was not thoroughly interviewed and that the claims file was not reviewed. The Board further noted that the November 2016 examiner found that the Veteran did not have a peripheral nerve condition or peripheral neuropathy while an earlier, May 2016, examiner found severe symptoms in many of the areas where the November 2016 VA examiner found no symptoms just six months later. In its remand, the Board requested that a new VA examination be scheduled and that the examiner discuss and reconcile these contradictory findings. Thereafter, a new examination was conducted in September 2017 and a medical opinion was provided by a different examiner than the examiner who conducted the physical examination. Initially, the medial opinion fails to note the contradictory findings of the May 2016 and November 2016 VA examination, as requested in the Board's remand. The examiner additionally noted that the Veteran had risk factors for lower extremity nerve problems including back problems and diabetes mellitus. The examiner stated that if those disorders were service connected than they were related to the Veteran's lower extremity symptoms. In so finding, the examiner incorrectly associates a medical opinion with a legal one; whether the Veteran was service connected for a back or diabetes mellitus disorder should not bear on whether the Veteran's disorders were medically related. The examiner further stated "it will be mere speculation to determine the baseline, aggravation because Morton's Neuroma share some of the same symptoms with neuropathy like numbness, tingling and pain" but failed to note whether Morton's neuroma caused the Veteran's neuropathy. The examination is inadequate, the examiner failed to discuss prior VA examiner's findings, failed to conduct the physical examination as requested and failed to provide a comprehensive opinion as to whether neuropathy was caused or aggravated by the Veteran's bilateral hallux valgus with Morton's neuroma. A new, thorough, VA examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for neuropathy of the bilateral feet. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any neuropathy of the bilateral feet found on examination or in the claims file (to include the diagnosis of diabetic neuropathy) is at least as likely as not (i.e., a fifty percent or greater probability) caused by or aggravated (worsened) by the Veteran's service-connected bilateral hallux valgus with Morton's neuroma. The examiner is asked to reconcile the findings of peripheral neuropathy in the Veteran's treatment records and the May 2016 VA examination report, with the finding that the Veteran did not have peripheral neuropathy at all in the November 2016 VA examination report. The examiner should provide a complete explanation for all conclusions reached and the foundation for all conclusions should be clearly set forth. Specifically, the examiner must provide an explanation in support of any and all opinions rendered. All conclusions must be supported by a complete rationale. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words merely saying he or she cannot respond will not suffice. 2. Upon completion of the foregoing, readjudicate the Veteran's claim based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.H. HAWLEY 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).