Citation Nr: 18141561 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 12-12 123 DATE: October 11, 2018 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a stress fracture of the right second metatarsal is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected residuals of a stress fracture of the right second metatarsal is remanded. REFERRED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record (see May 2012 substantive appeal); but, while it was listed as an issue in the April 2014 supplemental statement of the case, a rating decision has not been issued by the Agency of Original Jurisdiction (AOJ) on that matter. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). REASONS FOR REMAND The Veteran served on active duty from June 1993 to February 1994. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement in July 2012. A Statement of the Case was issued in February 2012, and the Veteran perfected his substantive appeal (via a VA Form 9) in May 2012. In November 2014, the Board remanded the claims for further development. Specifically, the Board directed that the AOJ obtain outstanding medical records and an addendum opinion relating to the low back and right ankle. 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of a stress fracture of the right second metatarsal is remanded. 2. Entitlement to service connection for a right ankle disability, to include as secondary to service-connected residuals of a stress fracture of the right second metatarsal is remanded In the September 2018 Informal Hearing Presentation, the Veteran’s representative argued that VA failed to obtain an opinion regarding a direct service connection theory of entitlement in light of the Veteran’s reports to the June 2012 VA examiner that he believed that he had a right ankle condition in service, but was not seen for ankle complaints until after discharge, and his reports to the July 2010 VA examiner that his low back pain had its onset in 1993. Service treatment records show the Veteran complained in October 1993 that “[e]very day [his] knees, hip, shin splints, ankles, calfs [sic], feet hurt.” The Board will obtain a VA opinion that addresses direct service connection. Additionally, the Veteran’s representative argued that because a December 1998 Board decision’s grant of a compensable rating for the service connected residuals of a stress fracture of the right second metatarsal was based on a finding that the benefit of the doubt rule should be resolved in favor of the Veteran that the foot disability “produce[ed] impairment similar to metatarsalgia (ratable at 10 percent under Code 5279) or a moderate foot injury (ratable at 10 percent under Code 5284),” any impairment caused by the Veteran’s Morton’s neuroma should be considered as part of the question of whether the Veteran’s service connected foot disability caused or aggravated his ankle and low back disabilities. Since the December 1998 Board decision, however, there is medical opinion evidence indicating that the Veteran’s Morton’s neuroma is not related to the service connected foot disability. The July 2010 VA examination report notes that “[t]here is no indication in the literature that a stress fracture could cause a neuroma, they are separate indications of mechanical stress of the foot. . . . Since a neuroma and stress fracture are separate conditions, the neuroma is not caused by any residuals of stress fracture.” The July 2010 and February 2015 VA opinions ultimately concluded that the Veteran’s ankle and low back disabilities were not caused or aggravated by the service connected foot disability. The service representative observed that the opinions were rendered by a registered nurse and requested that the Veteran’s claim be reevaluated by a specialist. In light of the complexity of the medical nexus questions presented in this case, the Board will obtain another opinion. The matters are REMANDED for the following action: 1. Please obtain an addendum opinion by an orthopedic physician (M.D.) to determine whether the Veteran’s right ankle disability and low back disability are due to service or service connected disability. The physician should review the file and this fact should be noted in the accompanying medical report. The physician should specifically address the following: (a) Does the physician agree with the findings and conclusions set forth in the July 2010 and February 2015 VA opinions that “[t]here is no indication in the literature that a stress fracture could cause a neuroma, they are separate indications of mechanical stress of the foot,” that “[s]ince a neuroma and stress fracture are separate conditions, the neuroma is not caused by any residuals of stress fracture,” and that there is no evidence of any long term sequelae from the Veteran’s service connected healed metatarsal stress fracture and therefore it has not caused or aggravated a right ankle disability and low back disability? (b) If the physician finds that the neuroma is a residual of the service connected metatarsal stress fracture, is it at least as likely as not (a 50 percent or greater probability) that the metatarsal stress fracture, neuroma, and any foot pain and altered gait due to the neuroma caused OR aggravated his right ankle disability, including tendinitis, tarsal tunnel syndrome, peroneal nerve injury, and arthritis? In so opining, the physician must consider evidence of the presence of an altered gait over many years (e.g., a 1999 VA examiner noted that the Veteran’s gait remained somewhat antalgic; a 2010 examiner noted that the Veteran had an antalgic gait and stated that there was evidence of abnormal weight bearing with abnormal shoe wear on the right side; a 2015 examiner noted that the Veteran favors his right lower extremity with ambulation and tended to bear weight on the lateral aspect of his right foot). (c) If the physician finds that the neuroma is a residual of the service connected metatarsal stress fracture, is it at least as likely as not (a 50 percent or greater probability) that the metatarsal stress fracture, neuroma, and any foot pain and altered gait due to the neuroma caused OR aggravated his low back disability? In so opining, the physician must consider evidence of the presence of an altered gait over many years (e.g., a 1999 VA examiner noted that the Veteran’s gait remained somewhat antalgic; a 2010 examiner noted that the Veteran had an antalgic gait and stated that there was evidence of abnormal weight bearing with abnormal shoe wear on the right side; a 2015 examiner noted that the Veteran favors his right lower extremity with ambulation and tended to bear weight on the lateral aspect of his right foot). (d) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s right ankle disability (including tendinitis, tarsal tunnel syndrome, peroneal nerve injury, and arthritis) had its onset in service or is otherwise related to his military service? In so opining, the examiner must consider the Veteran’s October 1993 lay reports of pain (“[e]very day my knees, hip, shin splints, ankles, cal[ves], feet hurt”). (e) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s low back disability had its onset in service or is otherwise related to his military service? In so opining, the examiner must consider the Veteran’s lay reports during the July 2010 VA examination that his back pain had its onset in 1993. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel