Citation Nr: 20008057 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 12-11 359 DATE: January 31, 2020 REMANDED Entitlement to service connection for a right great toe disability, to include hallux valgus, is remanded. Entitlement to service connection for a pulmonary disability, to include bronchitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to July 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony before a Veterans Law Judge (VLJ) in May 2015. A transcript of the hearing is of record. In May 2017, the Veteran was notified that the VLJ who conducted the May 2015 hearing is no longer employed by the Board and a new hearing was offered. The Veteran responded in June 2017 indicating he does not wish to have a new hearing and asked that the matter be decided based upon the evidence of record. In October 2015 and January 2018, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Entitlement to service connection for a right great toe disability is remanded. Although the Board sincerely regrets the further delay of this issue, the Board finds that remand of this claim is once again required as the June 2019 opinion obtained on remand continues to be inadequate to evaluate the claim. The January 2018 Board remand found a November 2015 VA opinion to be inadequate because although it acknowledged the Veteran’s reports of symptoms in the right great toe, it discounted the Veteran’s comments because the Veteran’s records were silent for any right great toe complaints or diagnosis. The Board’s January 2018 remand requested that the examiner discuss the history provided by the Veteran in the opinion and if there is any clinical or medical basis for corroborating or discounting the reliability of the Veteran’s history, the examiner should provide a complete explanation in support of such a finding. The remand directive specifically noted that the examiner could not rely on the absence of medical record or evidence of medical treatment as the sole rationale for any negative nexus opinion. On June 2019 VA examination, the examiner noted that the Veteran reported that he had great toe pain during service, starting in 1991 when the Veteran said he fractured his left leg, but the Veteran said that he did not seek treatment for the toe except for one report of numbness. The Veteran reported that his right great toe condition persisted with the same symptoms and that he treated with Etodolac. The examiner concluded that the right great toe condition was less likely than not incurred in or caused by the Veteran’s service. The rationale was that the Veteran reported numbness one time and on examination by Army medical personnel they found the toes to be normal. The physician stated that the Veteran’s contention that he had great toe pain throughout his service and since had no objective evidence to support it. The examiner noted that the June 2012 x-ray revealed minimal hallux valgus in the left foot, which also did not support the toe disability. The examiner indicated that the Veteran had not sought treatment for his right great toe in the past. This opinion is inadequate essentially because it appears to be relying on an absence of medical treatment as support for the opinion that the right great toe disability is not related to the Veteran’s service. Such an opinion does not substantially comply with the January 2018 Board remand instructions. Furthermore, it appears to be contradictory to the evidence of record. Specifically, it notes that hallux valgus of the left foot was noted in 2012 and seems to indicate that such was not noted in the right foot. However, the June 2012 VA examination report reflects that there was also minimal hallux valgus in the right foot. It is unclear from the opinion whether this diagnosis was considered since only a diagnosis in the left foot was discussed. Additionally, during the May 2015 Board hearing, the Veteran testified that along with self-medicating, he also treated his right great toe by wearing insoles to help raise up his toe, because it was more comfortable that way. VA treatment records reflect that the Veteran wears insoles, including a November 2015 record that indicates he needed replacement insoles because his old ones were worn out. It is unclear whether this history and objective evidence was considered, as the Veteran did not specifically report using insoles during the June 2019 examination and the examiner did not indicate consideration of such statements. For these reasons, remand of the claim is necessary to obtain an addendum opinion. Entitlement to service connection for a pulmonary disability, to include bronchitis, is remanded. In October 2015, the Board remanded the claim for service connection of a pulmonary disability, to include bronchitis, directing that the RO obtain a supplemental opinion explaining why the June 2012 examiner said that the Veteran requires the use of medication to treat a respiratory condition but elsewhere said that the Veteran did not have a respiratory disability. In January 2018, the Board again remanded this claim for clarification in the context of the grants of service connection for upper respiratory infection in January 2016 and for allergic rhinitis in April 2016. The Board directed the RO to clarify the procedural history of the January 2016 and April 2016 rating decisions granting an effective date of June 2011. In a June 2019 rating decision, the RO indicated that the upper respiratory raised claim included allergic rhinitis and the claimed sinusitis. But the decision did not address the pulmonary disability/ bronchitis claim, and the June 2019 rating decision indicated that the issue of service connection for a pulmonary disorder, to include bronchitis, would be addressed in a separate rating decision or Statement of the Case. The RO has not issued any type of decision, including a rating decision, Statement of the Case, or Supplemental Statement of the Case, regarding a pulmonary disorder, to include bronchitis since the June 2019 rating decision which indicated the issue remained on appeal. The RO will issue a Supplemental Statement of the Case if, pursuant to a remand by the Board, it develops the evidence or cures a procedural defect, unless the only purpose for the remand is to assemble records previously considered by the AOJ and properly discussed in a prior Statement of the Case or Supplemental Statement of the Case, or the Board specifies in the remand that a Supplemental Statement of the Case is not required. 38 C.F.R. § 19.31(c) (2018). New evidence since the Board’s last remand in January 2018 includes VA treatment records, the Veteran’s February 2018 communication with VA personnel requesting bronchitis medication, and a March 2019 VA examination for sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx. Here, the Board clearly specified that a Supplemental Statement of the Case was to be provided to the Veteran if his claim remained denied. Such has not been accomplished. Consequently, the Board must remand the Veteran’s claim for service connection for a pulmonary disability, to include bronchitis, to ensure such readjudication is completed. The matter is REMANDED for the following action: 1. Obtain and associated with the claims file any updated VA treatment records since July 2019. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right great toe disability, to include hallux valgus, is at least as likely as not related to his service, including treatment received therein. An examination should only be ordered if the clinician determines one is necessary in order to provide the requested opinion. In providing an opinion, the examiner must consider the diagnosis of minimal right foot hallux valgus made on June 2012 VA examination. The examiner must also consider the Veteran’s competent statements, including as made at the May 2015 Board hearing, that he has self-treated pain in the right great toe with medication since service and used insoles to help lift the toe up for comfort. The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service treatment records or otherwise in medical evidence of record. The examiner may NOT rely on the absence of a medical record or medical treatment, including during service, as the sole rationale for any negative nexus opinion. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.   3. Readjudicate the issues on appeal, including the matter of service connection for a pulmonary disability/bronchitis and furnish to the Veteran and his representative an appropriate SSOC (including, for the pulmonary disability/bronchitis, consideration of the evidence submitted since the January 2018 Board remand) and afford a reasonable opportunity for response. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.