Citation Nr: 20072011 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 14-22 383 DATE: November 6, 2020 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. INTRODUCTION The Veteran served on active duty from November 2000 to November 2003. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in November 2017 and August 2019, the above-noted issues were remanded for additional development. The case has since been returned to the Board for further appellate review. REASONS FOR REMAND Though untenable, the Board finds additional development is necessary prior to final adjudication of this matter. As noted above, this case was before the Board in November 2017 and August 2019. At that time, the Board found a VA examination was necessary to address the Veteran’s claimed left and right food disability, because his service treatment records (STRs) show he reported experiencing foot/ankle problems on active duty and the Veteran has also asserted his bilateral foot disability was likely the result of his parachute jumps in service. In particular, the Board notes that during his May 2017 Board hearing, the Veteran indicated he presently experiences pain in the balls of his feet. He also competently reported that he experienced pain in the balls of his feet following parachute jumps in service. He stated that he always felt the pain would go away, as he had been instructed that foot pain was a common occurrence with parachute jumps. The Veteran further indicated that he continued to experience ongoing foot pain following his period of active service but was unable to obtain treatment for the condition because he did not have medical insurance. The Veteran underwent a VA foot examination in September 2020. The Board observes he also underwent a VA knee examination at that time. Following her examinations, the examiner concluded the Veteran’s left knee disability was consequentially associated with his in-service parachute jumps. In support of this conclusion, the examiner cited to a study of several veteran military parachutists. Importantly this study revealed a “high frequency of fractures” involving parachute activities. The examiner curiously diagnosed the Veteran with both a left foot strain, as well as an old healed right foot second metatarsal fracture. The examiner concluded the Veteran’s bilateral foot disabilities were less likely than not incurred in or caused by his military service, to include his parachute jumps therein. The examiner wholly failed to explain how or why the Veteran’s old healed right foot fracture could not have been caused by his parachute jumps in service, in spite of her cited medical article suggesting a high prevalence of fractures resulting from parachute jumps. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the examiner indicated there was “no evidence of a foot condition during active service.” However, as previously noted the Veteran was indeed treated for foot and ankle pain in service. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Additionally, the examiner entirely ignored the Veteran’s reports of foot pain that initially manifest in service and has been ongoing since that time. Examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing insufficiencies, the Board finds substantial compliance with the November 2017 and August 2019 remand instructions has not been achieved. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined this Veteran, to address the etiology of the Veteran’s claimed bilateral foot disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed foot disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include as a result of the Veteran’s parachute jumps. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements as they relate to his reports of experiencing foot pain following his parachute jumps in service, which has persisted ever since. The examiner should also consider and expressly discuss the medical article cited by the September 2020 VA examiner, which indicates a high prevalence of fractures and other musculoskeletal injuries were demonstrated by veteran military parachutists. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she 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. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.