Citation Nr: 21000296 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 09-15 394 DATE: January 5, 2021 REMANDED Service connection for a right foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1972 and from January 1973 to May 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2007 rating decision. In May 2011, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of this hearing is of record. The Veteran was notified in November 2020, that the VLJ who conducted the 2011 hearing was no longer available to participate in the adjudication of the Veteran’s claim. The Veteran was also informed of his right to a new hearing. This letter indicated that if there was no response to this letter within 30 days, the Board would presume that he did not desire another hearing. The Veteran did not respond to such letter within 30 days. Therefore, it is presumed that he does not want another Board hearing. The Board remanded the Veteran’s claim in April 2020, at which time it noted that the Veteran had metatarsus varus, which is a congenital deformity of the right foot. The Veteran reports that he injured his right foot during his first period of active duty after kicking a pipe while running out of a building during a mortar attack. While the Veteran received a VA examination addressing his right foot disability in December 2013, the Board found this examination report to be inadequate because the examiner, without explanation, found that the Veteran did not have a disability of the right great toe despite x-ray findings showing a right foot congenital deformity. Accordingly, the Board remanded the claim in order to obtain an addendum opinion addressing whether the Veteran’s metatarsus varus deformity, as a congenital disease or defect, was subject to a superimposed injury or disease during service that resulted in additional disability or was aggravated during service. In August 2020, an examiner offered an addendum opinion. The Veteran, through his representative, argued that this examination report/opinion did not substantially comply with the Board’s April 2020 remand directives. The Board agrees. The examiner opined that it was “challenging” to envision the right foot and right toe metarsus varum deformities, and such deformities were not present on a June 27, 2019 x-ray examination report. The examiner thus concluded, without an examination, that the Veteran did not have a right foot disability at all. The examiner did not reconcile this finding with the evidence of record, including the December 2012 examination report, that the Veteran indeed had a deformity of the right foot. After opining without adequate explanation that the Veteran did not have a right foot disability, the examiner did not offer probative responses to the remainder of the Board’s questions. Accordingly, the Board must again remand the Veteran’s claim in order to obtain an addendum opinion addressing whether the Veteran’s metatarsus prima varum deformity, which is a congenital disease or defect, was subject to a superimposed injury or disease during service that resulted in additional disability or was aggravated during service. Additionally, the June 2019 x-ray findings referenced in the August 2020 examination report has not been associated with the record. On remand, all outstanding VA treatment records relating to the Veteran’s right foot disability should be associated with the record. The matters are REMANDED for the following actions: 1. Ensure that all of the Veteran’s VA treatment records relating to his right foot disability, including the June 2019 x-ray examination report, have been associated with the record. 2. Then, obtain a VA addendum opinion to address the Veteran’s congenital right foot and right toe metatarsus varum deformity. This addendum opinion should be offered by an examiner other than the one who offered the August 2020 opinion. The examiner must review the Veteran’s claims file, including this remand, before offering the requested opinions. An additional examination of the Veteran is not required unless the examiner determines such examination to be necessary in order to offer the requested opinions. The examiner must opine: (a.) Is the Veteran’s congenital right foot and right toe metatarsus varum deformity considered a congenital defect or a congenital disease? Note that a defect differs from a disease in that a defect is more or less stationary in nature and a disease is capable of improving or deteriorating. For the purpose of this opinion, please assume that the Veteran indeed has a right foot and right toe metatarsus varum deformity, pursuant to the findings of the December 2012 examiner. (b.) If a right foot or great right toe disorder is a congenital defect, is it as least as likely as not (50 percent probability or greater) that the defect was subject to superimposed disease or injury during service? If so, please describe the resultant disability. In rendering the requested rationale, the examiner must reconcile his/her opinion with the Veteran’s contentions of having injured his right foot during service in 1970, during his first period of active duty, when he kicked a pipe while running out of a building during a mortar attack, that he had to use crutches for a period after that, and that since the time of his injury to his right foot, he has had varying amounts of pain in his great right toe 95% of the time. (c.) If a right foot or great right toe disorder is a congenital disease, does the record show that it is at least as likely as not that the disease was aggravated beyond natural progression during service? (d.) If a right foot or great right toe disorder is neither a congenital defect or disease, did such disorder clearly and unmistakably exist prior to service, and if so, is it clear and unmistakable that it was not aggravated beyond natural progression by his military service? Any such clear and unmistakable evidence must be identified. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.