Citation Nr: 20040164 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 14-37 436 DATE: June 11, 2020 REMANDED Entitlement to a rating in excess of 30 percent for service-connected bilateral sinus tarsi syndrome with plantar fasciitis (bilateral foot disability) is remanded. Entitlement to service connection for lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran had active service from September 1972 to September 1974. In April 2020, the RO granted service connection for a right knee disability, a right ankle disability, and a left ankle disability. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). These issues are no longer before the Board. A remand is required for substantial compliance with the May 2018 remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Id. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making reasonable efforts to obtain relevant private medical records. 38 C.F.R. § 3.159(c)(1). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be probative, the examiner must be informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In a January 2019 development letter, the RO asked the Veteran to identify and authorize the release of any outstanding private treatment records. In July 2019, the Veteran submitted VA Form 21-4142 identifying First Care PC, Dr. Grinkewitz, and Virginia Orthopedic and Spine Bon Secours Medical Group (Virginia Orthopedic). The RO submitted two requests each for private treatment records from Dr. Grinkewitz and Virginia Orthopedic in October and December 2019; however, they did not send a request to First Care PC. After receiving no response from Dr. Grinkewitz or Virginia Orthopedic, the RO sent a January 2020 letter to the Veteran informing him that they had determined that the records are unavailable. The Veteran submitted a new VA Form 21-4142 again identifying Virginia Orthopedic, and the RO submitted a third request for these records, which were successfully added to the claims file in February 2020. As the RO failed to request records from First Care PC, remand is required. While on remand, the RO should also make additional attempts to obtain records from Dr. Grinkewitz, who had previously submitted records upon request in November 2013 and December 2015. In addition, in January 2020, the Veteran reported that there were outstanding treatment records at the Hampton VA Medical Center (VAMC). As such, all of these records should also be obtained. As directed in the May 2018 remand, the Veteran underwent VA examinations in October 2019; however, these examinations were conducted before any requests for outstanding private treatment records were submitted to the Veteran’s private medical providers. After the RO has made sufficient efforts to obtain these private treatment records, addendum medical opinions should be obtained for the present claims on appeal. Accordingly, remand is required. Further, the May 2018 remand directives also specifically required the examiner to address foot pathologies found in December 2015 private treatment records, including hyperpronation, compensated forefoot, and rearfoot bilaterally. The examiner was also instructed to address a finding of posterior tibial tendon dysfunction bilaterally noted in January 2013 private treatment records. The examiner failed to do so. Accordingly, these must also be addressed on remand. The matters are REMANDED for the following action: 1. Secure proper authorizations and make arrangements to obtain all the records of treatment or examination from all private treatment providers already noted in the record, including but not limited to First Care PC, Dr. Grinkewitz, and the Hampton VAMC. Also, contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination of any other relevant non-VA medical records not listed above. Should the Veteran identify any additional private treatment providers, secure the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file as well. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion to determine the severity of the service-connected bilateral foot disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner must specifically address the following: 1) private treatment records from November 2012, February 2013, and April 2013 describing bilateral hyperpronation; 2) December 2015 private treatment records describing hyperpronation, compensated forefoot, and rearfoot bilaterally; 3) January 2013 private treatment records noting posterior tibial tendon dysfunction bilaterally; 4) the October 2019 VA examination. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the lumbar spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is reminded that the presumption of soundness upon service entry applies for any lumbar spine disorder. Hence, for any low back disability found for which there is an indication of its existence prior to service, the examiner must opine whether that disability (for which there is such indication of existence prior to service) clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether that low back disability clearly and unmistakably was not aggravated by service (not permanently increased in severity beyond natural progress). If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the lumbar spine disorder had onset in, or is otherwise related to, active service. The examiner must specifically address the following: 1) the November 2016 private treatment records containing the Veteran’s assertions of having lumbar pain for 40 years; 2) any additional private treatment records added since this remand; and 3) the October 2019 VA examination. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.