Citation Nr: 1804602 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 14-16 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for hallux valgus. 2. Entitlement to service connection for hammertoes. ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied entitlement to service connection for degenerative disc disease of the lumbar spine, headaches, plantar fasciitis, and hallux valgus. In October 2015, the Board remanded the Veteran's lumbar spine, headaches, plantar fasciitis, and hallux valgus claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. In an August 2016 rating decision, the Appeals Management Center (AMC) granted service connection for bilateral plantar fasciitis, degenerative disc disease of the lumbar spine, and headaches. This award represents a complete grant of the benefits sought with respect to those claims, and, therefore, they are no longer in appellate status or before the Board at this time. The hallux valgus and hammertoe issues adjudicated in the August 2016 supplemental statement of the case (SSOC) are back before the Board for further appellate proceedings. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Board regrets the additional delay, but for reasons explained below, finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board last remanded the case in October 2015. See October 2015 Board remand. As to the hammertoes issue, the Board instructed the RO to obtain an opinion as to whether it was at least as likely as not that the Veteran's hammertoes noted at the time of the Veteran's enlistment examination increased in severity during his period of active service. The examiner was then to provide "[a] complete explanation for the opinion." Id. Further, if the examiner determined that the hammertoes noted at entry increased in severity during service, he or she was to state whether any increase clearly and unmistakably (obvious, manifest, and undebatable) was due to the natural progress of the disease. In this respect, the examiner was also to provide a "complete explanation for the opinion." Id. As to the hallux valgus issue, the Board instructed the RO to obtain an opinion as to whether the Veteran's hallux valgus was incurred in or aggravated by the Veteran's time on active service. In said opinion, the examiner had to "consider the Veteran's statements regarding the continuity of symptomatology." Id. As to the hammertoes, the examiner did not determine whether the Veteran's disability increased in severity during his period of active service. Nevertheless, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner's rationale, verbatim, was "[t[here is no documentation of change or pain in hammertoes in service." See August 2016 VA medical opinion. Similarly, the examiner determined that the Veteran's hallux valgus, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner's rationale, verbatim, was "[t[here is no documentation of any change or any increased pain in toes in service." See August 2016 VA medical opinion. Then, the examiner opined that the Veteran's hallux valgus was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale, verbatim, was "Veteran had hallux valgus in 3/1970 before service." See August 2016 VA medical opinion. In these opinions, contrary to explicit instructions from both the Board and the RO, the examiner improperly discounted the Veteran's lay testimony and relied primarily on the absence of contemporaneous medical records to render negative nexus opinions; such opinions are inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Therefore addendum opinions are required to address these flaws. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include but not limited to treatment records dated from August 2016 to present. All obtained records should be associated with the evidentiary record. The AOJ must perform all necessary follow-up indicated. If the records are not available, or a negative response is received, the AOJ should make a formal finding of unavailability, advise the Veteran and his representative of the status of his records, and give the Veteran the opportunity to obtain the records on his own. 2. After completing the above, and after any records obtained have been associated with the evidentiary record, obtain an addendum opinion from an appropriately qualified VA examiner to determine the nature and etiology of the Veteran's hammertoes and hallux valgus. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran (if deemed necessary by the examiner), the VA examiner is asked to respond to the following inquiries: A. Whether it is at least as likely as not (a 50 percent probability or greater), that the hammertoes noted at the time of the Veteran's enlistment examination increased in severity during his period of active service. A complete explanation for the opinion must be provided. B. If it is determined that the hammertoes noted at entry increased in severity during service, was any increase clearly and unmistakably (obvious, manifest, and undebatable) due to the natural progress of the disease. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. A complete explanation for the opinion must be provided. C. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's hallux valgus was incurred in or aggravated by the Veteran's time on active duty. The examiner cannot improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. In providing the opinion, the physician must specifically take into account the Veteran's statements regarding the continuity of symptomatology. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the medical professional cannot provide any opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. The AOJ should conduct any other development deemed appropriate, and ensure that the VA examination reports and opinions comply with the Board's remand instructions. 4. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. The Veteran 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). _________________________________________________ G. A. WASIK 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).