Citation Nr: 1805178 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-21 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left foot disability, include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1966 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). In April 2016, a videoconference hearing was held before the undersigned. A transcript of the hearing is in the Veteran's record. In June 2016 and in July 2017, the case was remanded for additional development. The July 2017 remand order also referred to the agency of original jurisdiction (AOJ) the issue of service connection for a back disability (raised by the record in a February 2017 VA Form 21-526EZ). A review of the claims file found no action taken on the referral. Accordingly, the issue is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND In July 2017, the Board remanded this matter for an examination to ascertain the nature and etiology of the Veteran's left foot disability (specifically including addressing a secondary service connection theory of entitlement). A VA foot examination was conducted in August 2017. In a January 2018 statement, the Veteran's representative contends that the examination was inadequate because it was by nurse practitioner (and not an orthopedist or podiatrist as requested in the July 2017 remand), and requests that the issue be remanded pursuant to Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that both the United States Court of Appeals for Veterans Claims (CAVC) and the Federal Circuit have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner's competency must be raised by the appellant to overcome this presumption. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). See also Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence discussed in Cox and Rizzo to VA examiners). The Veteran has not shown that the examination was inadequate solely by virtue of the examiner's medical specialty. The Board finds that the August 2017 VA examination report is nonetheless inadequate for rating purposes (for a different reason). The examiner was asked whether any currently diagnosed left foot disability was caused by, or aggravated by, the Veteran's service-connected right knee disability. The examiner diagnosed hallux valgus, calluses, and hammer toes; she stated that "ill fitting shoes is the likely cause." Later in the report, the examiner opined it is less likely than not that the Veteran's left foot disabilities were caused or aggravated by his service-connected right knee disability. The rationale for the opinion provided notes that the Veteran's right knee condition began in high school (between 1979 and 1983) and that his left foot problems began in approximately 2006. She wrote, "Veteran's left foot condition is separate and unrelated to the right knee condition," without additional rationale or explanation. While the totality of the report supports her finding that the Veteran's left foot disabilities were caused by ill-fitting footwear, the rationale does not address whether any diagnosed left foot disability is aggravated by his right knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-141 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation). Accordingly an addendum advisory medical opinion is necessary. The case is REMANDED for the following: 1. The AOJ should secure for the record updated records of all VA evaluations or treatment the Veteran has received for his left foot since May 2017 (when the most recent VA treatment records associated with the record are dated). 2. Thereafter, the AOJ should return the record to the examiner who conducted the July 2017 VA foot examination for an addendum opinion that addresses whether or not the Veteran's service-connected right knee disability has aggravated his left foot disabilities. The entire record, to include this remand and any newly obtained records, must be reviewed by the examiner. Based on a review of the record, the examiner should provide an opinion that responds to the following: Is it at least as likely as not (a 50% or better probability) that the Veteran's left foot disabilities have been caused or aggravated by his service-connected right knee disability? The opinion must address aggravation. The examiner must include rationale with all opinions, citing to supporting factual data and/or medical literature, as deemed appropriate. If the examiner is unavailable or cannot provide the opinion sought, forward the record to another appropriate medical provider for the opinion. 3. The AOJ should then review the record and readjudicate the claim of service connection for a left foot disability. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative opportunity to respond, and return the case to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to CAVC. 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).