Citation Nr: 20055151 Decision Date: 08/20/20 Archive Date: 08/20/20 DOCKET NO. 14-34 743A DATE: August 20, 2020 REMANDED Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to service connection for hammer toes of the right foot is remanded. Entitlement to service connection for hammer toes of the left foot is remanded. Entitlement to service connection for a left foot or ankle disability (other than flatfoot and hammer toes) is remanded. REASONS FOR REMAND The appellant served on active duty in the US Army from October 1963 to September 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office. In October 2018, the Board remanded the claim for additional development. 1. Entitlement to service connection for bilateral flatfoot is remanded. The Veteran contends that he has bilateral flatfoot and it began in service or is otherwise caused by service. He has also reported that he has had flatfoot since birth. For service connection purposes, there is a distinction under the law between congenital disease and a congenital defect. A “congenital disease” is defined as a condition capable of improving or deteriorating, whereas a “congenital defect” is defined as a condition that is more or less stationary in nature. Service connection is available for congenital diseases, but not defects, that are aggravated in service. See O’Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Pursuant to the October 2018 Board remand, a VA examination was scheduled to provide a medical opinion as to whether the Veteran’s flatfoot disability is congenital or acquired, and if it is congenital whether the disability is a congenital defect or congenital disease. The November 2019 VA examination determined the bilateral flatfoot was at least as likely as not to be a congenital defect and less likely than not to be a congenital disease. However, while the examiner provided a lot of rationale for the opinion, it failed to provide adequate rationale to support her findings of congenital defect. Specifically, the examiner stated the condition was a defect, yet the rationale merely relied on the fact that the Veteran states his parents said he was born with flatfoot. Further, she supported the opinion by stating that the condition was “congenital” and noted as “EPTS” (existing prior to service). However, these opinions merely support the assertion that the condition was congenital, but not whether it is a defect or a disease. The Board cannot make a fully informed decision on the issue of entitlement to service connection for bilateral flatfoot because the VA examiner did not provide adequate rationale; thus, an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for hammer toes of the right foot is remanded. 3. Entitlement to service connection for hammer toes of the left foot is remanded. The Veteran claims his left and right foot hammer toes were incurred during his active duty service. During the November 2019 VA examination, the examiner confirms the diagnosis of bilateral hammer toes. She opined that it is less likely than not (less than 50 percent probability) that the Veteran’s bilateral hammer toes began during his service or are otherwise related to his service, reasoning that because he “presented to the VA for medical care on 10/2012 and did not report any complaints with his feet, but was noted to have bilateral hammer toes. This was about forty-six years after separation from the military service.” However, the Board finds this reasoning to be inadequate. The mere absence of treatment records should not be the sole basis for a negative opinion. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007). Furthermore, the examiner did not address the Veteran’s statements regarding the in-service onset of his foot condition and the continuity of symptomatology he has experienced since service, nor did she address his prior 1977 claim for service connection for hammer toes. The Board finds the November 2019 medical opinion to be inadequate to adjudicate the Veteran’s claim for entitlement to service connection for right and left hammer toes. See Barr, 21 Vet. App. at 311. Therefore, an addendum medical opinion is warranted before the claim can be adjudicated on its merits. 4. Entitlement to service connection for a left foot or ankle disability (other than flatfoot and hammer toes) is remanded. The Veteran contends that he suffers from a left ankle or foot condition, other than his bilateral flatfoot and bilateral hammer toes, resulting from broken foot residuals. Pursuant to the October 2018 remand, a VA examination was scheduled to identify and determine the nature and etiology of the Veteran’s left foot or ankle disability (other than flatfoot and hammer toes). The November 2019 VA examination did not diagnose the Veteran with a left foot or ankle disability nor discuss prior left foot and ankle diagnoses. The examiner did not address the Board’s previous notation that the Veteran was diagnosed with degenerative or traumatic arthritis in both feet, bilateral ankle/tibial edema, he suffered a severe twisted ankle in service, and indicated he broke his foot a few years ago and it never healed properly. The November 2019 VA examiner did not address these diagnoses, nor did it provide rationale in accordance with the Board’s remand directives. Therefore, the Board finds that there has not been substantial compliance with the remand directive, and remand is necessary again in order to properly develop the claim. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s bilateral flatfoot, bilateral hammer toes, and left foot/ankle disability. The claims file should be made available for review, and the examination report should reflect that such review occurred. Following the review of the record, the examiner should respond to the following: (a.) Is the Veteran’s bilateral flatfoot considered to be a congenital defect (more or less static in nature) or congenital disease (capable of improving or deteriorating) for VA purposes? (The examiner is advised that for the purposes of VA compensation, a “congenital defect or abnormality is defined as a condition that is more or less stationary in nature, whereas a “congenital disease” is defined as a condition capable of improving or deteriorating.) (b.) If the flatfoot is a congenital defect, is it at least as likely or not (a 50 percent probability or greater) that there was a superimposed disease or injury in-service that resulted in an additional disability of the feet? (c.) If the flatfoot is a congenital disease, is it clear and unmistakable that the Veteran’s bilateral flatfoot was aggravated in service. Please determine whether it is clear and unmistakable that there was no increase during service, or that it is clear and unmistakable that any increase in disability was due to the natural progression of the pre-existing condition. (d.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current diagnosis of bilateral hammer toes was incurred in, or otherwise related to, his service? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is directed to the Veteran’s statements concerning the in-service onset of the claimed condition and the continuity of symptomatology he has experienced since service. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (e.) Identify all left ankle and foot conditions (other than flatfoot and hammer toes) that were diagnosed during the appeal period, to specifically include degenerative or traumatic arthritis and ankle/tibial edema. Whether another examination is needed is left to the examiner’s discretion. For each diagnosed disability, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that such was incurred during active service or is otherwise related to the Veteran’s military service. A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, Associate 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.