Citation Nr: 20072865 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 15-39 979 DATE: November 12, 2020 REMANDED Entitlement to service connection for a left foot disability, to include left foot pes planus, and as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the U.S. Army from March 1967 to July 1967, in addition the Veteran had active duty for training in June 1966 and served in the Army Reserve until April 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) The Veteran testified before the undersigned Veterans’ Law Judge at an April 2019 Travel Board hearing. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in September 2019, and was remanded for additional development. In addition, entitlement to service connection for bilateral hearing loss was previously before the Board, and during the course of the appeal service connection for bilateral hearing loss was granted in an April 2020 rating decision effective September 22, 2011. Also, entitlement to service connection for allergic rhinitis was previously before the Board and service connection was granted in the April 2020 rating decision effective September 22, 2011. In addition, entitlement to service connection for pes planus with plantar fasciitis and degenerative arthritis of the right foot was previously before the Board and service connection was granted in the April 2020 rating decision effective October 27, 2011. Further, service connection for lumbar degenerative disc disease was also granted in an April 2020 rating decision effective September 22, 2011. Lastly, entitlement to service connection for tinnitus was previously before the Board and was granted in the April 2020 rating decision effective September 22, 2011. As such represents a full grant of benefits sought on appeal these issues are no longer before the Board. Entitlement to service connection for a left foot disability, to include left foot pes planus, and as due to a service-connected disability The Veteran contends that service connection is warranted for left foot pes planus, to include as due to a service-connected disability. The Veteran contends that his ongoing left foot pain is related to service and his service-connected disabilities including residuals of his right ankle fracture and shortening of his right leg. The Board notes that the Veteran has claimed left foot pes planus, with which he reports ongoing left foot pain and associated symptomology, and during the course of the appeal an examiner noted that the Veteran does not have a diagnosis of left foot pes planus, but was found to have left foot arthritis. As such the Board has broaden the Veteran’s claim to encompass a left foot disability, to include left foot pes planus and arthritis and as due to a service-connected disability. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, 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). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for a supplemental clarifying opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left foot disability, to include left foot pes planus because no VA examiner has fully opined as to secondary service connection, and specifically aggravation. The Veteran was afforded a VA examination in December 2019. The examiner noted left foot degenerative arthritis. As to the Veteran’s claim for left foot pes planus, the examiner found that it is less likely than not that a left foot disability was incurred or caused by the claimed in-service, injury, event or illness. The examiner noted no diagnosis of left foot pes planus, and the only diagnosis of the left foot is degenerative arthritis. The examiner noted that the Veteran’s left foot degenerative arthritis is a result of normal wear and tear and was not incurred in or caused by an in-service, injury, event or illness. As to secondary service connection, the examiner noted that it is less likely than not that the Veteran has a diagnosis of left foot pes planus that was caused or aggravated by active service. The examiner noted that a nexus could not be established between the Veteran’s current left foot degenerative arthritis and service. However, the examiner failed to fully address aggravation, and whether the Veteran’s left foot disability, specifically his left foot arthritis has been caused or aggravated by his service-connected right ankle fracture and right leg shortening. As such a remand is warranted for a supplemental opinion. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s left foot arthritis and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s left foot arthritis was caused by his service-connected right ankle healed fracture and right leg shortening associated with the healed fracture? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s left foot arthritis was aggravated (permanently worsened beyond its natural progression) by his right ankle healed fracture and shortening of the right leg? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the VA examination in December 2019 noting that the Veteran’s left foot degenerative arthritis is a result of normal wear and tear and was not incurred in or caused by an in-service, injury, event or illness. Further, the examiner noted it is less likely than not that the Veteran has a diagnosis of left foot pes planus that was caused or aggravated by active service. In addition, attention is invited to the Veteran’s lay statements and testimony noting that his current left foot pain is a result of his service-connected right ankle healed fracture and shortening of his right leg associated with the healed fracture, and that he experiences ongoing symptomology which has worsened over time. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kardian, 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.