Citation Nr: 20041670 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 14-39 889 DATE: June 18, 2020 REMANDED The appeal for entitlement to service connection for a back disability is remanded. The appeal for entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran had active duty from February 1987 to June 1987, with subsequent service in the Army National Guard and the United States Army Reserves, which included periods of active duty for training (ACDUTRA) and inactive duty for training (IDT). The Veteran testified at a Board hearing in January 2018. A transcript is in the record. Subsequently, the Board remanded these matters in April 2018 for additional development. They have now been returned to the Board. The issue of service connection for erectile dysfunction was also remanded by the Board in April 2018. After the completion of the requested development, service connection for erectile dysfunction was granted in a February 2020 rating decision. Entitlement to special monthly compensation based on the loss of use of a creative organ was also granted. This is considered a complete grant of the benefits sought on appeal, and the issue has not been returned to the Board. 1. Entitlement to service connection for a back disability The April 2018 Board remand notes that the Veteran’s service treatment records reflect he was seen for complaints of back pain. The Board further noted the Veteran’s testimony that he injured his back while lifting duffel bags from a truck during a mission to Honduras in April 1991, and further noted additional testimony from a fellow soldier that confirmed the Veteran’s account. A written statement from another fellow soldier also confirmed the Veteran’s account. The Board noted that a May 2012 VA examination includes an opinion that denied the Veteran’s claim on the basis that there was no diagnosis or treatment of a back injury during service. The examiner acknowledged the April 1991 treatment but did not provide further comment. The examiner also failed to address the assertions of the Veteran and his fellow soldiers regarding the April 1991 injury. A new opinion was sought on remand, and the Veteran was to specifically address whether the current disability was related to the April 1991 injury. A new VA examination was conducted in October 2019. Once again, the examiner lists the April 1991 treatment in the history. The Veteran’s contention that his back was injured lifting bags from a truck was also noted. Unfortunately, the new opinion contains the exact same deficiencies as the previous opinion. The examiner checked the box on the examination form stating it was less likely than not that the Veteran’s back disability was incurred in or caused by the claimed inservice injury. However, the rationale continued to be that there was no diagnosis or treatment for any back condition during service, and that the first reported back diagnoses was after active duty. Neither the April 1991 record of back pain nor the contentions pertaining to an April 1991 injury were discussed in the rationale. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the regional office (RO) is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As the October 2019 opinion does not contain the discussion requested by the Board’s April 2018 remand, the matter must once again be returned in order to complete the previously requested development. 2. Entitlement to service connection for a bilateral foot disability The record indicates the Veteran has had several diagnoses associated with his claimed bilateral foot disabilities. The April 2018 remand requested opinions that addressed the etiology of these disabilities. One of the diagnoses was pes planus, which had been noted on the Veteran’s August 1986 enlistment examination for the National Guard, as well as on a July 1989 medical examination. During the current appeal, the Veteran was afforded a VA examination of his feet in May 2012. An X-ray study conducted at this time noted pes planus deformity. Unfortunately, the opinion provided by the May 2012 examiner did not address the Veteran’s pes planus. The April 2018 remand requested a review of the Veteran’s medical records by a specialist in orthopedics, after which opinions were to be obtained regarding the diagnoses of plantar fasciitis, hammertoes, hallux rigidus, possible tarsal tunnel syndrome, and tibialis posterior tendonitis. The examiner was to also provide an opinion as to whether the Veteran’s pre-existing pes planus was aggravated due to active service. The Veteran had a new VA examination in October 2019. The examiner checked the box stating it was less likely than not that the Veteran’s disability was incurred in or caused by active service. He then provided reasons and bases as to why plantar fasciitis and hammertoes were not related to service. Hallux rigidus, possible tarsal tunnel syndrome, and tibialis posterior tendonitis were not addressed. In a separate report, the examiner said there was no diagnosis of pes planus with which to render an opinion. The Board is obligated to obtain the requested opinions regarding hallux rigidus, possible tarsal tunnel syndrome, and tibialis posterior tendonitis. As for the pes planus, the current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Given that pes planus was shown at the time of the May 2012 VA examination, the requested opinion must still be obtained. These matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the Present. 2. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s back disability. A new examination is not required unless it is deemed necessary by the examiner in order to provide the requested opinions. After a review of the claims file, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) the back disability is due to a period of active service, ACDUTRA or IDT, to include an injury sustained in April 1991? The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. Therefore, the clinician should assume for the limited purposes of providing an opinion that the April 1991 injury occurred on either ACDUTRA or IDT and must then specifically address whether it is as likely as not that this injury is the cause of the Veteran’s current back disability. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. The Board observes that service connection may be established for a disability that did not initially manifest in service if it develops due to an injury or disease that was incurred during service. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. 3. Forward the claims file to an appropriate clinician to determine the nature and etiology of the Veteran’s foot disability/ies. A new examination is not required unless it is deemed necessary by the examiner in order to provide the requested opinions. After a review of the claims file, the examiner must opine: a) Whether it is at least as likely as not (50 percent or greater probability) that hallux rigidus, possible tarsal tunnel syndrome, and/or tibialis posterior tendonitis is due to a period of active service, ACDUTRA, or IDT. Please provide an opinion for each diagnosis. b) Did pre-existing pes planus at least as likely as not (a 50 percent or higher degree of probability) undergo an increase in disability during the Veteran’s period of active service or ACDUTRA beyond any natural progress? If so, does the record contain clear and unmistakable evidence (i.e., undebatable) that the worsening was due to the natural progression of the disease? For the purpose of this opinion, the May 2012 VA examination and X-ray study which noted bilateral pes planus should be considered a current diagnosis. The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. The Board observes that service connection may be established for a disability that did not initially manifest in service if it develops due to an injury or disease that was incurred during service. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.