Citation Nr: 18142788 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 05-25 916 DATE: October 17, 2018 REMANDED Entitlement to service connection for a right foot and ankle disability is remanded. Entitlement to service connection for a left foot and ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1979 to November 1980. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an August 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board remanded the issues of service connection of a bilateral foot disability in January 2008 and denied the claim in December 2009. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court, in pertinent part, vacated the December 2009 Board decision and remanded the claim for service connection for a bilateral foot disability. In July 2012, the Board remanded these claims for additional development. The Board, in May 2013, again denied service connection for bilateral foot disabilities. In a July 2014 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s May 2013 decision with respect to the bilateral foot disabilities. The Court remanded the case for further action. In December 2014, August 2016, and January 2018, the Board remanded these claims for further development. In addition, the Board further recharacterized the claim on appeal to one of service connection for bilateral foot and ankle disabilities in the January 2018 remand. The Veteran testified before the undersigned Veterans Law Judge at an August 2017 videoconference hearing. A transcript of this hearing is of record and has been reviewed. The Veteran’s attorney was not present, but the Veteran wished to proceed without his attorney. In November 2017, the Veteran revoked the power of attorney for the attorney and has not appointed another representative. Additionally, the Board notes that the increased rating claim for the service-connected lumbar spine disability is part of a different appeal stream that is currently being developed at the RO at the post-notice of disagreement stage. The RO has not yet issued a statement of the case regarding this claim. The Board acknowledges that ordinarily this claim should be remanded for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s notice of disagreement has been acknowledged by the RO and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where a notice of disagreement had not been recognized. As such, the Board need not direct the RO in a remand to address this claim at this time. 1. & 2. Entitlement to service connection for right and left foot/ankle disabilities is remanded. VA obtained an addendum medical opinion in March 2018 per the Board’s January 2018 remand directives. The Board regrets the further delay that this remand will cause, however, aspects of the opinion provided are still inadequate in its current form. First, the Board requested that the examiner discuss the Veteran’s reports of bilateral foot and ankle pain during service and since discharge from service and his testimony that he sought treatment for bilateral foot and ankle pain in the early 1990s. See August 2017 Board hearing. However, the examiner noted that, to comment on such evidence would be speculative, and indicated the medical opinions provided were only based on the objective medical records associated with the claims file. Thus, the Veteran’s lay contentions were not fully considered. Further, the examiner opined that the plantar fascitis, metatarsalgia, and hallux valgus were due, in part, to obesity. In support of this conclusion, the examiner noted the Veteran had a weight gain from 135 pounds to 168 pounds between October 1990 and September 2017. However, without the context of the Veteran’s height, a weight of 168 pounds does not suggest, per se, that the Veteran is obese. Additionally, no medical opinion was provided as to the nature and etiology of the bilateral pes planus, which was not noted at service entrance. The examiner reported that VA podiatry records indicated that the bilateral pes planus was congenital; however, there are other VA treatment records that only refer to the condition generally and do not classify it specifically as congenital. Further, even if the pes planus is congenital, neither the VA treatment records nor the examiner identified whether the pes planus was a congenital defect or disease. If the pes planus is a congenital disease, a medical opinion is required to determine whether it was aggravated by service. If the pes planus is a congenital defect, a medical opinion is required to determine whether it was subjected to a superimposed injury during service. Finally, pes planus is also known as flat feet. See Dorland’s Illustrated Medical Dictionary 416 (32nd ed. 2012). The medical examiner found that the etiology, in part, of the bilateral metatarsalgia was high arches. Thus, in the same medical opinion the examiner attributed one disability to high arches and one disability to flat feet. This creates a factual inconsistency without further explanation. As there are no adequate medical opinions of record, a remand is warranted to obtain new comprehensive VA foot and ankle examinations and to obtain an adequate medical opinion as to the nature and etiology of the Veteran’s foot and ankle disabilities. The Board also notes that recent private treatment records dated February 2018 report that the Veteran has a past medical history of rheumatoid arthritis. This newly noted medical history should be considered in the context of the Veteran’s claim for the pain in the bilateral feet and ankles. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Then, provide the Veteran with comprehensive foot and ankle examinations. All necessary tests or studies must be conducted. All clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. Although a thorough review of the claims file must be completed by the examiner as directed above, the Board calls the examiner’s attention to the following evidence: *The January 1979 enlistment examination report reflecting a normal clinical evaluation of the feet and the Veteran’s denial of swollen or painful joints or foot trouble in the corresponding medical history. *A March 1979 STR reflecting pain in the medial aspect of the left ankle after twisting it while running and a diagnosis of a left ankle sprain. *A July 29, 1980 STR showing joint pain in all extremities with normal range of motion, a diagnosis of “joint pain with unknown etiology,” and a note that the Veteran should be evaluated by podiatry for possible pes planus. *The Veteran’s reports of pain in his ankles, an assessment of possible arthritis, and x-rays of the ankles that were within normal limits in July 1980 STRs. *The October 1980 separation examination report reflecting a normal clinical evaluation of the feet and ankles. *The Veteran’s June 2004 claims application, where he reported bilateral foot problems since November 1979. *The Veteran’s July 2004 statement indicating his foot problems started after carrying a pack on his back, and the bones in his feet hurt and his feet were swollen. *The Veteran’s January 2010 statement that he had pain in his feet and ankles whether he was walking, standing, or sitting. *January 2011 VA podiatry records noting painful 1st MPJ pain on the left foot with limited dorsiflexion with pain on active extension and painful longitudinal arch bilaterally, right worse than left. *August 2011 VA podiatry records noting a diagnosis of unsteady gait, pes planus, and hallux rigidus. *A July 2012 VA examination report noting the Veteran’s complaints of bilateral foot pain and belief that his foot and ankle disabilities were related to wear-and-tear during service; diagnoses of bilateral metatarsalgia and plantar fasciitis. *The Veteran’s November 2011 statement noting that he was an infantry foot soldier and he had pain, cramps, and numbness in his feet and hands. *The Veteran’s April 2012 statement reporting bilateral foot pain since 1979 and noting that he was provided special shoes and walker due to his severe pain and poor balance by VA. *The Veteran reported jumping out of helicopters during service in May 2012 VA treatment records. See also September 2012 VA treatment records and March 2018 hearing transcript. *The Veteran’s January 2013 statement where he complained of pain in his toes, feet, ankles, and heels, which began during service and continued post-service. *An August 2017 VA examination report reflecting diagnoses of bilateral metatarsalgia, right foot hallux valgus, and bilateral plantar fasciitis. *The Veteran’s August 2017 hearing transcript, where he testified about bilateral ankle problems and in-service foot and ankle pain that continued after discharge from service. *February 2018 private treatment records noting a past medical history of rheumatoid arthritis. NOTE to the examiner: This case has been pending since 2004 and the Board’s appellate consideration of the case has been frustrated over the years by the lack of adequate medical opinions that are accompanied by complete rationale. Your thorough review of this case is greatly appreciated. Following a complete review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a). Identify all the current right and left foot disabilities, and right and left ankle disabilities. In doing so, address all the bilateral foot and ankle disabilities of record and on examination during the appellate period beginning June 2004, including but not limited to: bilateral pes planus; hallux rigidus; tinea; left foot hallux valgus; plantar fascitis; bilateral metatarsalgia; and any other disability diagnosed during the physical examination. If disabilities that were previously diagnosed are NOT currently shown on examination, the examiner MUST still address the prior diagnoses and explain why they have resolved or why they no longer result in any pathology. (b) For any foot and ankle disability that is determined to be “congenital,” clarify whether it is a “congenital disease” or “congenital defect.” Then respond to the following: (i) If it is a congenital foot or ankle disease, provide an opinion on whether it is it at least as likely as not (a 50 percent or greater probability) that the congenital disease was aggravated by service. In doing so, the examiner is asked to address the clinically normal January 1979 examination at entrance; the July 29, 1980 service treatment record that indicated the Veteran should be referred to podiatry for a possible pes planus evaluation; the Veteran’s testimony and other statements of record that his bilateral foot and ankle pain began during service and continued since discharge from service; and the Veteran’s testimony that he jumped out of helicopters during service, in addition to regular PT, as an infantryman in the Marine Corps. (ii) If it is a congenital foot defect, provide an opinion as to whether it was subjected to a superimposed injury during service. (iii) If the examiner concludes that any disability preexisted the Veteran’s service, the examiner must specifically indicate whether it clearly and unmistakably preexisted service, and if so, whether it clearly and unmistakably was NOT aggravated during service. (c) For any right or left foot and ankle disability diagnosed during the appellate period or diagnosed on physical examination, provide an opinion whether it is at least as likely as not (50 percent or greater probability) it had its onset during or is otherwise related active service. The examiner should provide a complete rationale for all opinions. 3. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Harper, Associate Counsel