Citation Nr: 20007864 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-08 103 DATE: January 30, 2020 REMANDED The appeal as to the claim of entitlement to service connection for right foot hammertoe, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus, is remanded. The appeal as to the claim of entitlement to service connection for left foot hammertoe, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus, is remanded. The appeal as to the claim of entitlement to service connection for right posterior tibial tendonitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus, is remanded. The appeal as to the claim of entitlement to service connection for left posterior tibial tendonitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus, is remanded. The appeal as to the claim of entitlement to service connection for bilateral plantar fasciitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 30 percent for service-connected bilateral pes planus is remanded. The appeal as to the claim of entitlement to a compensable evaluation for service-connected bilateral hallux valgus is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from September 1989 to January 1990, from March 1994 to May 1995, and from January 2011 to January 2012. His service was under honorable conditions. These matters are on appeal from a June 2018 rating decision. In his February 2019 substantive appeal, the Veteran requested a Travel Board hearing before a Veterans Law Judge. In an August 2019 statement, the Veteran requested adjudication of his claim without a hearing. As such, the Board may proceed to adjudicate this claim. See 38 C.F.R. § 20.704(e) (2019). 1. Entitlement to service connection for right foot hammertoe, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus. See argument Below at 5 2. Entitlement to service connection for left foot hammertoe, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus. See argument Below at 5 3. Entitlement to service connection for right posterior tibial tendonitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus. See argument Below at 5 4. Entitlement to service connection for left posterior tibial tendonitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus. See argument Below at 5 5. Entitlement to service connection for bilateral plantar fasciitis, to include as secondary to the service-connected bilateral pes planus and/or bilateral hallux valgus. The Veteran contends that his current right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, and bilateral plantar fasciitis, are related to active service, and in the alternative, due to the service-connected bilateral pes planus and/or bilateral hallux valgus disabilities. Post-service treatment records include private treatment records dated in September 2014, which note diagnoses of hammertoe, tibial tendonitis, and plantar fasciitis. A January 2017 QTC fee-based examination notes diagnoses of right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, and bilateral plantar fasciitis. The examiner noted the Veteran’s report of bilateral foot pain since service, specifically, in 1989. The examiner did not review the record or provide an etiology opinion for the aforementioned diagnoses. The report of a January 2018 VA foot examination notes diagnoses of bilateral pes planus and hallux valgus. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2019). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. The January 2017 VA examination is inadequate to adjudicate the claim, as the examiner noted current diagnoses of right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, and bilateral plantar fasciitis; however, he failed to provide an opinion as to the etiology of these disorders. Further, the examiner did not consider whether the current right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, or bilateral plantar fasciitis disorders were caused or aggravated by the service-connected bilateral pes planus and/or bilateral hallux valgus disabilities. Likewise, the January 2018 VA examination is inadequate to adjudicate the claim, as the examiner did not provide an etiology for the Veteran’s current right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, or bilateral plantar fasciitis disorders (noted on examination in July 2017). Accordingly, another medical examination is necessary to make a determination in this case; specifically, to clarify the Veteran’s current diagnoses and to determine the etiology of any current diagnoses. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 6. Entitlement to evaluation in excess of 30 percent for service-connected bilateral pes planus. See argument Below at 7 7. Entitlement to a compensable evaluation for service-connected bilateral hallux valgus. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected bilateral pes planus and bilateral hallux valgus, in January 2018, approximately two years ago. In statements dated in July 2018, the Veteran asserted that his service-connected bilateral foot disabilities worsened; specifically, that he experienced increased pain and had difficulty walking, suggesting his symptoms may have increased in severity since the January 2018 VA examination. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected bilateral pes planus and hallux valgus disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records dated from December 2018, to the present, and any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination before an orthopedist (or an appropriate physician with proper skill and training) to determine the etiology of any current foot disorder (aside from pes planus and hallux valgus), to right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, and bilateral plantar fasciitis disorders present during the period on appeal. The examiner must review the record, to include service treatment records, VA and private treatment records, lay statements and the Veteran’s statements. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that any current right and/or left foot disorder, to include, right hammertoe, left hammertoe, right posterior tibial tendonitis, left posterior tibial tendonitis, or bilateral plantar fasciitis, manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder(s) was caused or aggravated by his service-connected bilateral pes planus and/or hallux valgus disabilities. In providing the opinion, the examiner must discuss the Veteran’s assertions, that his symptoms began during his first period of active service. The examiner must also discuss the contemporaneous private treatment records and VA examination reports that note diagnoses of right and left posterior tibial tendonitis disorders. For purposes of the opinions, the examiner should assume that the Veteran is a credible historian. A complete rationale for all opinions offered must be provided. If the examiner is unable to provide any required opinion, the examiner should fully explain why this is the case. Likewise, if the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Schedule the Veteran for a VA examination by an orthopedist (or an appropriate physician with proper skill and training) to assess the nature and severity of his service-connected bilateral pes planus disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the bilateral pes planus disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. Schedule the Veteran for a VA examination by an orthopedist (or an appropriate physician with proper skill and training) to assess the nature and severity of his service-connected bilateral hallux valgus disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and complaints. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the bilateral hallux valgus disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 6. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.