Citation Nr: 18155279 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 13-18 437A DATE: December 4, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1995 to August 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2014, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In August 2015 and December 2016, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. In August 2018, the Veteran was notified that the VLJ who presided over the August 2014 Board hearing was no longer with the Board. In September 2018, the Veteran declined an additional Board hearing. 38 U.S.C. § 7107; 38 C.F.R. § 20.707. Entitlement to service connection for a low back disability; a bilateral hip disability; a bilateral knee disability; a bilateral foot disability; and headaches is remanded. Unfortunately, the Veteran’s claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure compliance with the previous remand directives. See generally Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the December 2016 remand directed the RO to obtain medical opinions to address the etiologies of the Veteran’s claimed conditions. Specifically, the examiner was directed to provide opinions which take into account the Veteran’s credible statements regarding the onset and continuity of symptomatology with respect to each of his claimed disorders. Following in-person examinations, the examiner opined that it was less likely than not that the Veteran’s claimed disorders were related to his military service. Despite the December 2016 remand instructions, the examiner relied on the lack of corroborating evidence of the Veteran’s in-service onset and post-service continuity of symptoms in reaching their opinions. See February 2017 VA Examination Report (stating the Veteran’s service treatment records are silent for chronic diseases or pathologies). The Veteran has consistently and credibly stated that he experienced ongoing back, hip, knee, feet, and headache symptoms since his military service. See July 2013 Form 9; August 2014 Hearing Transcript. Further, the Veteran testified as to why he did not seek more medical attention during his active duty service. See August 2014 Hearing Transcript (testifying that he did not want to be medically discharged). Additionally, the December 2016 remand instructed the RO to obtain a VA examination by a podiatrist to address the Veteran’s claim of entitlement to service connection for a bilateral foot disability. The February 2017 examination was done by a staff internist. See February 2017 Foot Conditions Disability Benefits Questionnaire (DBQ). Further, the December 2016 remand instructed the examiner to opine on the nature and etiologies of all foot disorders found to be present from October 2011 to present. In this regard, a September 2014 statement by the Veteran’s private podiatrist diagnosed the Veteran with plantar fasciitis and Achilles tendinitis. See September 2014 Foot & Ankle Associates Statement. The February 2017 foot examination only addressed the Veteran’s diagnoses of pes planus and hammer toe. See February 2017 Foot Conditions DBQ. Accordingly, the Board finds the February 2017 opinions inadequate, as they do not comply with the December 2016 remand instructions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran’s report of in-service injury and instead relied on the absence of evidence in the Veteran’s service medical records to provide a negative opinion); Stegall, 11 Vet. App. 268; Dyment, 13 Vet. App. at 146-47. See too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Therefore, on remand, the Veteran should be afforded new VA examinations, which address the competent and credible statements of the Veteran regarding his in-service onset of symptoms and continuity of symptomatology following service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr, 21 Vet. App. at 307-08 (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If any outstanding records are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, schedule the Veteran for appropriate VA examinations to determine the nature and etiology of all bilateral knee, back, bilateral hip, and headache disorders. The claims folder and a copy of this REMAND must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examination should be performed in accordance with the Disability Benefits Questionnaire(s) (DBQs). The examiner should identify all current bilateral knee disorders, back disorders, bilateral hip disorders, and headache disorders found to be present. The examiner is requested to provide an opinion, with respect to each knee, back, hip, and headache disorder present during the claims period (October 2011 to present) as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing these opinions, the examiner should consider and address the Veteran’s credible statements regarding the onset and continuity of symptoms with respect to his claimed disorder, as well as his credible statements as to why he did not seek medical attention for these conditions during his active duty service. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. The Veteran should also be scheduled for a VA examination by a podiatrist to determine the nature and etiology of all foot disorders present during the period of the claim. The claims folder and a copy of this REMAND must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examination should be performed in accordance with the Disability Benefits Questionnaire(s) (DBQs). The examiner should answer the following: a) Identify each foot disorder present, to include pes planus, plantar fasciitis, Achilles tendinitis, hammer toes, and heel spurs. The examiner is advised that for VA compensation purposes, a current diagnosis includes any diagnosis since the claim was filed. In this case, the claim was filed October 2011 and all diagnoses since then must be considered, even if they later resolved during the appeal period. Of note, the Veteran has been diagnosed with pes planus, plantar fasciitis, Achilles tendinitis, hammer toes, and heel spurs. b) Regarding the Veteran’s pes planus, the examiner should opine as to whether it is at least as likely as not that the disorder permanently increased in severity during the Veteran’s active service, and, if so, whether the increase in severity was clearly and unmistakably due to the natural progression of the disorder. If the examiner is of the opinion that the disorder did not permanently increase in severity during service, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder permanently increased in severity as a result of the Veteran’s active service. c) For any other foot disorder found to be present, to include plantar fasciitis, Achilles tendinitis, hammer toes, and heel spurs, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing these opinions, the examiner should consider and address the Veteran’s credible statements regarding the onset and continuity of symptoms with respect to his claimed disorder, as well as his credible statements as to why he did not seek medical attention for these conditions during his active duty service. Any opinions expressed by the examiner must be accompanied by a complete rationale. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel