Citation Nr: 21001924 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-05 650 DATE: January 12, 2021 REMANDED Entitlement to service connection for right great toe amputation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1976 to October 1988. Unfortunately, he passed away during the pendency of this appeal in July 2016. The Appellant is his surviving spouse, who was verified as the substituting party in May 2018. This matter comes before the Board on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the Appellant’s claim for additional development. Although further delay is regrettable, the Board finds that a second remand is necessary in to ensure that due process is followed and that there is a complete record upon which to decide the Appellant’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Appellant has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The September 2018 remand instructed the RO to obtain any outstanding records pertinent to the Appellant’s claim, and to schedule a VA orthopedic medical opinion to determine the nature and etiology of the Veteran’s right great toe amputation. While the RO did obtain medical records for the Veteran, and a VA physician did examine the record in May 2020, the Board finds that the May 2020 VA examination opinions are inadequate, and a remand is required to obtain a new opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examiner was instructed to provide an opinion as to whether it is at least as likely as not that the Veteran’s right great toe amputation was either directly related to his active military service, or caused or aggravated by his service-connected foot disabilities. The VA examiner issued two opinions on the same day in May 2020. The first of these opinions spends most of its time discussing whether the Veteran’s hallux valgus and pes planus are at least as likely as not related to his military service, and apparently concludes that they are not: service is negative for his bilateral HV and PP. no injury other than achilles tendons occurred in service. no injury to cause bilateral HV and PP is shown in the records from STR’s … The hallux valgus/pes planus on review is a bilateral congenital condition and diabetes is the CAUSE and only permanent aggravation for his amputation of right great toe...by medical plausibility The problem, of course, is that the Veteran’s hallux vagus and pes planus are already service connected, since 2010, the propriety of which is not at issue in this case. The second opinion, in its brief rationale, does not rectify the examiner’s misplaced focus: The amputation and HV do not show any relation on re review of + STR bilateral achilles injury in service and operations. The amputation occurred as a consequence of poorly controlled DM II NSC condition. -only. 2006 onset of DM is the cause of such... and.no contribution or secondary or perm aggravation is shown either by SC feet diagnoses as shown in the record. The examiner’s opinions appear to be incorrectly focused on whether the Veteran’s already service-connected foot disabilities are related to his military service and do not adequately address the questions at issue in this case. An adequate medical opinion must take it as a given that the Veteran’s bilateral pes planus, hallux valgus, and degenerative joint disease of the metatarsophalangeal joint of both great toes are service connected — and then explain whether it is at least as likely as not that the Veteran’s right great toe amputation was caused or aggravated by those or other service-connected disabilities. See 38 CFR § 3.310. An adequate medical opinion also must offer a complete rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). It is not enough to simply say that the Veteran’s right great toe amputation was not caused or aggravated by anything besides his diabetes; the examiner must explain the reasoning used to reach that conclusion, and specifically cite the evidence relied upon. The matter is REMANDED for the following action: Obtain a new VA medical opinion to determine the nature and etiology of the Veteran’s right great toe amputation. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right great toe amputation is related to any event or injury during his active duty military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s right great toe amputation was caused or aggravated by his service-connected foot disabilities (bilateral pes planus with hallux valgus and degenerative joint disease of the metatarsophalangeal joint of both great toes)? The examiner must specifically address both causation AND aggravation. A complete and fully explanatory rationale must be provided for all opinions. The examiner must cite any evidence used in forming each opinion, including records in the case file and medical literature. If an opinion cannot be rendered without resorting to speculation, the examiner must explain why this is so. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.