Citation Nr: 21000981 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-01 972 DATE: January 6, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to August 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing held via video before the undersigned Veterans Law Judge. This case was remanded in October 2019 for failure of the May 2019 VA examiner to comply with a June 2018 Board remand. The May 2019 VA examiner failed to address whether the Veteran’s bilateral foot disability clearly and unmistakably preexisted military service and, if so, whether the preexisting foot disability was clearly and unmistakably aggravated by the Veteran’s military service. As a result of the October 2019 Board remand, the Veteran was afforded a VA addendum opinion in December 2019. The examiner addressed hallux valgus and plantar fasciitis. For both conditions, the examiner found that the claimed conditions clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In the rationale for both addendum opinions, which are essentially identical, the examiner then stated that there was no documented evidence to prove the condition of hallux valgus or plantar fasciitis existed prior to military service. In addition, the examiner wrote in both opinions that an entrance exam dated 7/25/77 was negative for hallux valgus and no other foot problem was identified at entry to service. The December 2019 VA examiner used contradictory language when addressing the Veteran’s bilateral foot disabilities. The examiner found that the Veteran’s disabilities clearly and unmistakably existed prior to service and wrote in the rationale that there was no documented evidence to prove the condition of hallux valgus or plantar fasciitis existed prior to military service. Equally important, the examiner failed to address the Veteran’s pes planus that was noted in the first VA opinion in May 2012 and in the Veteran’s entrance exam in July 1977. There has not been substantial compliance with the Board’s previous remand directives regarding the issue of aggravation. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also notes that the Veteran’s representative rightly pointed out an error in the Veterans Benefit Management System (VBMS) profile. The Veteran’s name is misspelled and requires correction. The matter is REMANDED for the following action: 1. If possible, update and correct the Veteran’s first name in VBMS. The correct spelling of the Veteran’s first name is listed on this remand. 2. Contact the Veteran and request authorization to obtain any outstanding records pertinent to his claim, to include any private treatment record, following proper VA procedures under 38 C.F.R. § 3.159(c). 3. After completing the requested development, afford the Veteran a new VA addendum opinion with the appropriate clinician, other than the December 2019 VA examiner, to determine the nature and etiology of his bilateral foot disabilities. The Veteran’s claims file, including all remands and VA examinations/opinions, must be made available for review by the examiner in conjunction with the addendum opinion. The examiner must review the claims folder, and this fact must be noted in the accompanying medical report. Based upon a review of the claims file, the examiner must answer the following questions: Ascertain whether any of the Veteran’s foot disabilities, including, but not limited, to plantar fasciitis, hallux valgus, and pen planus, clearly and unmistakably preexisted military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (clearly and unmistakably preexisted) presented in this remand. If any of the Veteran’s foot disabilities clearly and unmistakably preexisted military service, the VA examiner is requested to provide an opinion as to whether the Veteran’s foot disabilities were clearly and unmistakably NOT aggravated by military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (clearly and unmistakably NOT aggravated) presented in this remand. If any of the Veteran’s foot disabilities did NOT clearly and unmistakably preexist military service, the VA examiner is requested to provide an opinion as to whether any of the Veteran’s foot disabilities are at least as likely as not (a 50 percent or greater probability) etiologically related to military service. The VA examiner is reminded that the response to this question must be phrased in the exact terms (at least as likely as not) presented in this remand. All opinions must be supported by a rationale that is consistent with the opinions presented. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.