Citation Nr: 21000254 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-22 234 DATE: January 4, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a right big toe disability is remanded. Entitlement to service connection for a psychiatric disability, to include depression and PTSD, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1989 to November 1993. The Veteran provided testimony at an April 2015 hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In February 2020, the Board remanded this case for additional development. The Board finds that there has not been substantial compliance with the Board’s previous remand directives. Another remand for further development is required. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a bilateral foot disability is remanded. In February 2020, the Board requested a medical opinion which addressed the nature and etiology of a bilateral foot disability. An April 2020 VA foot examination diagnosed bilateral pes planus, bilateral hallux valgus, bilateral plantar fasciitis, and degenerative arthritis of the feet. The examiner stated that “[d]uring service, [the] condition was acute only. There [was] no evidence of chronicity of care. A nexus ha[d] not been established. The file was reviewed including September 2019 examination reports, the Veteran's hearing testimony regarding a foot injury in service, and service medical records showing complaints of right foot symptoms, including due to cold exposure in 1990. There was no indication that a problem existed within a year following discharge. The episode noted that may have been due to cold exposure in 1990 was acute and did not show a need for follow-up. Pes planus was present on the Entrance Exam but foot problems were denied on the ETS physical indicating there was no exacerbation. There was pain noted in service a few times but it was denied to be present or to have problems with the feet on the ETS exam. Pain was not noted until almost 20 years later. It is less likely than not that the diagnosis of the right toe was secondary to an incident in service.” The Board finds the April 2020 opinion incomplete. The examiner noted that “the condition was acute only.” However, the service medical records show several diagnoses related to the feet to include bilateral foot “cold over exposure,” left cold exposure, left foot contusion, right foot muscle strain, right foot hyperesthesia, tendonitis of the right great toe, and possible nerve impingement of the third and fourth toes of the right foot. Therefore, it is unclear which in-service condition the examiner is referring to in the opinion. The examiner stated that there was no indication that a foot problem existed within a year following discharge and that foot pain was not noted until almost 20 years later. The Board notes that in September 1994, less than one year after separation from service, the Veteran reported bilateral foot pain following a 1991 cold weather injury. The September 1994 VA examiner diagnosed a history of “chill blain injury to both feet, not frostbite, residuals.” This evidence was not discussed in the April 2020 opinion. The examiner stated that the Veteran denied foot problems at separation “indicating there was no exacerbation.” However, there is no discussion of whether in-service foot symptoms, even if acute, indicated possible aggravation of pes planus. The August 2019 VA examiner stated that there was “objective sensation reduction in the right foot.” The April 2020 examination did not address the August 2019 right foot neurological findings as requested in the February 2020 Board remand. The Board notes that a remand confers on the Veteran the right to compliance with the terms of that remand. Stegall v. West, 11 Vet. App. 268 (1998). When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the deficiencies in April 2020 VA examination, the Board finds the opinion incomplete. Therefore, additional VA examination is necessary. 2. Entitlement to service connection for a right big toe disability is remanded. The April 2020 VA examiner stated that a right toe disability was not the result of service because “[d]uring service, [the] condition was acute only. There [was] no evidence of chronicity of care. A nexus ha[d] not been established… There was no indication that a problem existed within a year following discharge. The episode noted that may have been due to cold exposure in 1990 was acute and did not show a need for follow-up. Pes plans was present on the Entrance Exam but foot problems were denied on the ETS physical indicating there was no exacerbation. While frostbite c[ould] progress to DJD in some individuals, [the Veteran] show[ed] DJD bilaterally but the cold exposure only involved the right foot. In light of this, it is at least as likely as not that the diagnosed DJD is secondary to cold exposure noted in service.” The Board finds the April 2020 opinion incomplete. The examiner stated that frostbite could progress to degenerative joint disease and noted that there were degenerative changes in both feet and the right toe, but “cold exposure only involved the right foot.” The Board notes that a December 24, 1990, record shows a diagnosis of bilateral foot “cold over exposure.” Therefore, the opinion is based on incorrect factual premise and is not probative. Reonal v. Brown, 5 Vet. App. 458 (1993). The service medical records also show a July 1993 diagnosis of tendonitis of the right great toe. This finding was not noted or discussed in the report. Therefore, the April 2020 examination is incomplete and additional VA examination is necessary. 3. Entitlement to service connection for a psychiatric disability, to include depression and PTSD, is remanded. A May 2020 VA examination diagnosed persistent depressive disorder. The examiner opined that the psychiatric disability was not the result of service because there was no report of mental health issues in service. The examiner stated that “[the] Veteran's symptoms of Persistent Depressive Disorder began after his service and for reasons unrelated to his service. It is less likely than not his Persistent Depressive Disorder had its onset during active service or is related to any incident of service.” The Board notes that during the April 2015 Board hearing, the Veteran testified that depression and anxiety began in service and that he was diagnosed with anxiety while in service. The service medical records do not show a diagnosis of depression or anxiety while in service. However, in June 1991, the Veteran reported pain and insomnia and was prescribed Benadryl on a temporary basis. The doctor stated that “if unsuccessful, consider antianxiety meds.” The examiner did not discuss the Veteran’s testimony or the June 1991 record. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, an addendum is necessary. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. 2. Schedule the Veteran for a VA orthopedic examination, with a physician who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any foot disability and right great toe disability. The examiner must review the claims file, including this Remand, and should indicate review of the file in the report. The examiner should provide the following opinions: (a) Opine whether it is at least as likely as not (50 percent or greater probability) that any current foot disability is due to service or any incident of service. The examiner should provide a rationale for that opinion. The examiner must not limit the analysis to the in-service cold injury. The examiner must consider and discuss: (1) in-service symptoms of foot pain, burning, swelling, numbness, and radiating pain; (2) in-service diagnoses of bilateral foot cold injury, right foot hyperesthesia, right foot muscle strain, right foot/toe nerve impingement, left foot contusion, and right great toe tendonitis; and (3) post-separation reports of bilateral foot pain, swelling, numbness, tingling, and radiating pain. (b) The examiner must consider and discuss the April 2020 VA examiner’s diagnosis of degenerative arthritis of the feet and the examiner’s finding that frostbite may progress to degenerative joint disease. (c) Opine whether it is at least as likely as not (50 percent or greater probability) that any current foot disability was noted during service with continuity of the same symptomatology since service. Provide a rationale for that opinion. The examiner must consider and discuss the Veteran’s reports of foot pain in the September 1994 VA examination report. (d) Opine whether it is at least as likely as not (50 percent or greater probability) that degenerative arthritis of the right great toe is due to service or any incident of service? Provide a rationale for the opinion. The examiner must address the July 1993 diagnosis of tendonitis of the right great toe, and the April 2020 VA examiner’s finding that frostbite may progress to degenerative joint disease. (e) Opine whether it is clear and unmistakable (undebatable) that preexisting pes planus was NOT aggravated (permanently worsened) during service? Provide a rationale for the opinion. The examiner must consider and discuss in-service injuries, symptoms, and diagnoses and explain why the in-service occurrences are not an indication of aggravation. 3. Schedule the Veteran for a VA examination with a psychologist or psychiatrist to opine regarding the etiology of a psychiatric disability. The examiner should review the evidence of record and should note that review in the report. The examiner should diagnose all psychiatric disabilities found and should reconcile that diagnosis with the other evidence of record. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any psychiatric disability began in service or was otherwise related to any incident of service. In providing the opinion, the examiner must consider and discuss the Veteran’s 2015 testimony that anxiety was diagnosed while in service, and the June 1991 medical record regarding antianxiety medication. A detailed rationale for the opinion must be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.O., 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.