Citation Nr: 18144155 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 16-19 059A DATE: October 25, 2018 REMANDED Entitlement to service connection for degenerative joint disease of the bilateral feet is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for degenerative joint disease of the bilateral knees is remanded. Entitlement to a compensable rating for left foot bunionectomy residuals, is remanded. Entitlement to a compensable rating for right foot bunionectomy residuals, is remanded.   REASONS FOR REMAND 1. Entitlement to service connection for degenerative joint disease of the bilateral feet is remanded. The Board finds that remand of this issue is needed for a new VA examination. The Board last remanded the claim in July 2017 because a private (non-VA) examiner in November 2014 gave a diagnosis, but did not appear to examine her for any degenerative conditions or perform any imaging studies establish the diagnosis. The Board specified that once VA undertook the effort to provide the Veteran with a medical examination, it must ensure that such examination was an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Upon remand, a VA examination of the feet was conducted in September 2017. Following examination, the examiner diagnosed bilateral bunionectomy and hammertoes. The examiner did not undertake any diagnostic testing, such as imaging studies, but found there wa no “objective evidence” of bilateral degenerative joint disease of the feet. The examiner noted that the November 2014 private opinion was rendered without performing any specific imaging studies. The Board finds that this VA examination is not currently adequate. The examiner found no “objective evidence” of a bilateral degenerative joint disease in the feet and faulted the private examiner for not “doing an[y] specific imaging studies,” but then did not perform any objective testing. By not explaining how there was no “objective evidence” without performing any imaging studies, it is not clear from the examination report how the examiner could conclude that the Veteran did not have degenerative joint disease of the feet. Thus, the VA examiner’s non-diagnosis is undermined by the same factual error as the private examiner’s diagnosis. Accordingly, there was not substantial compliance with the Board’s remand, and a remand for a new examination is needed. See Stegall v. West, 11 Vet. App. 268 (1998); see D’Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). 2. Entitlement to service connection for a cervical spine disability is remanded. 3. Entitlement to service connection for degenerative joint disease of the bilateral knees is remanded. As issues 2-3 are related, the Board will address them together. Specifically, remand is needed to attempt to conduct new VA examinations. The Board last remanded the cervical spine and bilateral knee claims for VA examinations. Upon remand, a VA examination was scheduled, but the Veteran was marked as failing to report. It is not clear why she failed to report when the examinations were scheduled at the same time as the foot examination. Of note, the administrative records from the scheduling facility reflect a notation that both examinations were “Cancelled by MAS.” Because the Veteran attended the foot examination but not the knee and cervical spine examinations, this administrative entry raises an appearance that she did not fail to report, but that the examinations were cancelled before being given the chance to report. As such, the Board finds that these claims should be remanded once more to attempt to obtain these needed VA examinations. 4. Entitlement to a compensable rating for left foot bunionectomy residuals, is remanded. 5. Entitlement to a compensable rating for right foot bunionectomy residuals, is granted. As issues 4-5 are related, the Board will address them together. Specifically, the development on the remanded issue of service connection for degenerative joint disease of the feet will necessarily be relevant to and impact the decision on these issues. Hence, the issues are inextricably intertwined. A remand of these claims is therefore required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any degenerative joint disease of the cervical spine, knees, and feet. The examiner must address each of the following: (a.) The examiner must provide a diagnosis for any conditions found extent in the cervical spine, bilateral knees, and bilateral feet. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) If a current diagnosis is not present, the examiner should address whether the Veteran nevertheless has any functional impairment in the cervical spine, knees, and/or feet? (Continued on the next page)   (c.) If any condition is diagnosed or if there has been a functional impairment present, opine whether such condition is at least as likely as not related to an in-service injury, event, or disease. C. BOSELY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel