Citation Nr: 21000340 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-09 824 DATE: January 5, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1972 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The matter came before the Board in October 2013 and again in January 2015, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) for further development. The case was returned to the Board in February 2016, when the Board denied the Veteran’s claim on its merits. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (the Court); and in January 2017, the Court issued a Joint Motion for Partial Remand (JMPR), which vacated the Board’s denial and remanded the case in order to afford the Veteran an adequate VA examination. This matter was before the Board most recently in July 2020, at which time the Board remanded the claim to the AOJ to obtain an addendum medical opinion concerning the nature and etiology of any foot disabilities present, supported by an adequate rationale. The matter has now been returned to the Board for further appellate consideration. Entitlement to service connection for a bilateral foot disability is remanded. Although it sincerely regrets the additional delay, the Board finds that another remand is necessary in this case before the Veteran’s appeal can be properly adjudicated on its merits. Pursuant to the Board’s July 2020 remand, VA obtained an additional medical opinion concerning the nature and etiology of the Veteran’s foot disabilities. In pertinent part, the examiner noted that the right foot folliculitis experienced by the Veteran in service resolved while in service and that the Veteran’s right foot degenerative joint disease (DJD), calcaneal heal spurs, and onychomycosis are no longer present due to the Veteran’s amputation of the right toes and subsequent amputation of the right leg below the knee. Accordingly, the examiner did not furnish a nexus opinion for those disorders. However, the Board notes that while an essential element for establishing entitlement to service connection is competent evidence of a current disability, service connection may be awarded if competent medical evidence demonstrates the presence of a disability at any time throughout the pendency of the Veteran’s claim, even if no disability is present at the time of the claim’s adjudication. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Concerning the left foot DJD and calcaneal heal spurs, the examiner opined that the conditions were not caused by the Veteran’s military service but instead by overuse of the foot related to locomotion. He further noted that the Veteran’s left foot onychomycosis is a fungal infection likely resulting from poor nail grooming and advanced age rather than military service. However, the examiner did not address the Veteran’s lay statements regarding his asserted continuity of symptomatology since service. Therefore, the rationale of the negative nexus opinion is inadequate for adjudicative purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with the directives of the July 2020 remand. Therefore, another remand is required in order to procure a medical opinion supported by a sound rationale before the Board can render a fully-informed decision on the merits of the Veteran’s appeal. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for a bilateral foot disability. ONLY IF another examination is deemed necessary to answer the questions below, should one be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s claimed foot disabilities, to include (i) folliculitis of the right foot, (ii) bilateral degenerative joint disease, (iii) bilateral calcaneal spurs, (iv) amputation of the right toes, and (v) bilateral onychomycosis, were incurred in service or are otherwise etiologically related to his military service? The clinician should explain why or why not, to include an explanation of why the Veteran’s disabilities are or are not a result of the right foot folliculitis diagnosed during service in May 1972, the foot blisters caused by the boots the Veteran wore while on active duty, or the continuity of symptomatology the Veteran has experienced since service. Given that service connection may be awarded for a disability present at any time during the course of an appeal, the opinion needs to address each condition, even if the condition is no longer present. It should be noted that the Veteran is competent to attest to observable symptomatology. The clinician’s attention is directed to the Veteran’s statements concerning the continuity of symptomatology he has experienced since service, specifically, his statements regarding the pain and blisters he experienced wearing boots while on active duty service and the continuous treatment he has undertaken for his feet since service. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician is reminded that the Veteran is competent to report both in service and post-service symptomology. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.