Citation Nr: 21002050 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-15 721 DATE: January 12, 2021 REMANDED The claim for service connection for right foot disorder, including tendonitis, is remanded. The claim for increased rating for cholecystectomy (claimed as gallbladder removal) currently evaluated at noncompensable prior to September 15, 2020 and 10 percent onwards, is remanded. REASONS FOR REMAND The Veteran had active duty service in the U.S. Marine Corps from May 1989 to August 1989 and October 1992 to June 1999, and then had service in the Air Force from September 1999 to September 2012. A November 2018 Board videoconference hearing was held before the undersigned Veterans Law Judge (VLJ), and the transcript of that proceeding is of record. In a June 2019 decision, the Board granted the claim for service connection for ureterolithiasis (claimed as kidney stones). The additional claims on appeal for service connection for a right foot disorder, and increased rating for cholecystectomy, were remanded. During pendency of this appeal, the September 2020 VA Regional Office (RO) rating decision increased from noncompensable (0 percent) to 10 percent the evaluation for cholecystectomy, effective September 15, 2012. The claim for still higher schedular rating continues on appeal where here absent express withdrawal of that issue. See AB v. Brown, 6 Vet. App. 35 (1993). As a further preliminary matter the claim involving right foot disability is recharacterized as such because the claim is not limited in substance in the same manner previously stated as for tendonitis exclusively. See generally, Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. The claim for service connection for right foot tendonitis is remanded. The September 2020 VA opinion on a right foot disorder is not sufficiently complete. The examiner diagnosed current right foot sprain, and stated that the tendonitis had resolved. The examiner found the right foot strain to be unrelated to service. The Veteran’s lay assertion of persistent symptoms was not addressed. In his December 2013 Notice of Disagreement (NOD), the Veteran stated he dealt with this condition “daily.” In his April 2016 VA Form 9, the Veteran stated that he had foot pain that limited his ability to run. At his November 2018 hearing, he testified that he continued to have foot pain which he believed was due to running. His right foot pain was confirmed again at his September 2020 examination. The Veteran’s lay assertions should be addressed. Dalton v. Nicholson, 21. Vet. App. 23 (2007). An addendum opinion is needed. 2. The claim for increased rating for cholecystectomy is remanded. The Veteran underwent a VA examination for his cholecystectomy residuals in September 2020. He described his symptoms as daily bowel movements, diarrhea, reflux, needing to eat very slowly, and vomiting if he ate too fast. He stated that he had to plan his day around bathroom access and completely change his diet. The Board notes that in his NOD, the Veteran reported gastrointestinal problems, frequent diarrhea, and the inability to eat many foods. In his VA Form 9, he reported diarrhea, stomach pain, and needing to use the bathroom frequently. At his hearing, he testified that he had indigestion, diarrhea, and was unable to eat certain foods. At his November 2018 hearing, he reported diarrhea, indigestion, and needing to restrict his diet. His lay statements regarding his symptoms have been consistent over time. The VA examiner found that the Veteran had mild symptoms without further elaboration. Clarification is needed as to whether the Veteran’s reported symptoms are part of his service-connected cholecystectomy residuals. The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician to provide an addendum opinion as to the nature and etiology of his currently claimed right foot disorder, including tendonitis, sprain injury, and/or residuals of the same condition. The claims file must be provided to the clinician. A new physical or telehealth examination is only necessary if deemed so by the clinician. The clinician must provide opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a right foot disability that was incurred in service or is otherwise etiologically related to service. The clinician should address the Veteran’s continual complaints of foot pain during the course of this appeal. Although an independent review of the claims file is required, the clinician’s attention is called to the following: a. The December 2012 VA examination report where the Veteran stated that he developed tendonitis of the right foot due to getting in and out of aircraft. b. The Veteran’s statement in his December 2013 NOD that he has symptoms “daily.” c. The Veteran’s November 2018 hearing testimony where he reported that he continued to experience right foot symptoms that he believed were from running a lot while in service. d. The September 2020 VA examination report and accompanying opinion. The clinician is requested to give a complete rationale for any opinion provided. If for any reason an opinion is not possible without resort to speculation then the examiner should state that and why it happens to be the case. 2. Provide the Veteran’s claims file to a suitable clinician to clarify the residuals of his cholecystectomy. The claims file must be provided to and reviewed by the clinician. A new physical or telehealth examination is only necessary if deemed so by the clinician. Although an independent review of the claims file is required, the clinician’s attention is drawn to the following: a. The Veteran’s NOD, where he reports gastrointestinal problems, frequent diarrhea, and inability to eat certain foods. b. The Veteran’s Form 9, where he reported diarrhea, stomach pain, and needing to use the bathroom frequently. c. The Veteran’s November 2018 hearing testimony, where he reported diarrhea, indigestion, and needing to restrict his diet. d. The report of the September 2020 VA examination, where the Veteran described daily bowel movements, diarrhea, reflux, needing to eat very slowly, and vomiting when he ate to fast. The clinician must explain whether the Veteran’s reports of daily bowel movements, diarrhea, reflux, needing to eat slowly, vomiting when eating too fast, stomach pain, and indigestion are residuals of his service-connected cholecystectomy. 3. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then readjudicate the matters on appeal based upon all evidence of record. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.