Citation Nr: 21002358 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-18 928 DATE: January 13, 2021 REMANDED The claim of entitlement to service connection for a right big toe foot injury (hereinafter right big toe condition) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from December 1973 to October 1979. The Veteran also had a period of National Guard service. This matter is before the Board of Veteran’s Appeals (Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in that denied service connection for a right big toe condition. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the Central Office in Washington, D.C. in June 2017. A written transcript of that hearing has been prepared and associated with the evidence of record. The Board remanded the Veteran’s claims for service connection for a right big toe condition, a left ankle disability, and a lumbar spine disability in December 2017 for VA examinations which were provided in May 2018. The Board in February 2019 then denied the Veteran’s claim for service connection for a right big toe condition. The Board notes that the Veteran’s appeal had contained a service connection claim for a left ankle disability and a lumbar spine disability, which was granted in a December 2018 rating decision. That award constitutes a full grant of the disability sought, and that appeal has been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA’s General Counsel filed a joint motion for partial remand (JMR). In April 2020, the Court granted the parties’ motion, vacated the portions of the February 2019 Board decision that denied entitlement to service connection for a right big toe condition and remanded the matter for actions consistent with the JMR. The Board remanded the Veteran’s claim for service connection for a right big toe condition in September 2020 for a new VA examination which was provided in November 2020. The Board notes the November 2020 Administrative Decision that indicated additional evidence had been submitted and considered but the Veteran’s claim for service connection remained denied. Entitlement to service connection for a right big toe condition The Veteran contends that he is entitled to service connection for a right big toe condition. The Court’s April 2020 JMR found the May 2018 VA examination to be inadequate for VA purposes as the examiner did not address the Veteran’s statements of an injury in-service, did not consider all of the evidence of record, and failed to provide a full rationale for the opinions offered. The Board’s September 2020 remand directives requested a new VA examination for the Veteran’s right big toe condition, and noted the Veteran was to be considered a reliable historian and the examiner was to address and consider the Veteran’s statements of an in-service injury and continuous symptoms since service. The Veteran received a new VA examination in November 2020 that noted the Veteran’s diagnoses of hallux valgus and mild degenerative joint disease. The examiner noted the Veteran’s report of onset of a right big toe condition due to an injury in service and continuous symptoms since service. The examiner found the Veteran’s service treatment records contained a notation of a wounded toe which was cleansed and treated in November 1977 and found that the condition was acute only. The examiner then noted a March 2015 notation of a stage 2 bunion deformity of the right big toe. The examiner indicated that the Veteran’s right big toe condition was not likely due to or caused by wearing combat boots in service. The Board finds the VA examiner’s opinion to be inadequate for VA purposes. The examiner failed to address the Veteran’s statements of continuous symptoms and pain since service as directed by both the Board’s remands from December 2017 and September 2020 and the April 2020 Court’s JMR. The examiner did not address the injury that the examiner documented and then ignored without a rationale, and then found that wearing combat boots during service would not cause the Veteran’s claimed right big toe condition. When an opinion does not express the right degree of certainty, does not provide a rationale, is conclusory, does not consider all of the relevant evidence of record including lay statements, or does not consider all raised theories of entitlement then the examination is inadequate. Stefl v. Nicholson, 21 Vet. App. 120 (2007); Bloom v. West, 12 Vet. App. 185, 187 (1999); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Combee v. Brown, 34 F.3rd 1039, 1043-44 (Fed. Cir. 1994). The Board finds that the development has not been done on the remanded claim as directed by the Court’s April 2020 JMR and Board remands of December 2017 and September 2020. Although regrettable, additional remand is required for full compliance with the Court’s and the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). This matter is REMANDED for the following actions: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Schedule the Veteran for a VA examination before an appropriate physician, but using a different examiner from the November 2020 VA examiner, a telehealth examination is also an option to determine the nature and etiology of his claimed right big toe condition. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies, and to review the relevant medical and lay evidence of record, including the Veteran’s testimony before the Board. See June 2017 Board Hearing Transcript at pages 11-17. The examiner is then asked to provide opinions as to the following: (a.) Identify all current right big toe disabilities associated with the Veteran. (b.) Is it at least as likely as not that any identified right big toe disability manifested during, or as a result of, active military service? In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, and the Veteran’s statements regarding an in-service injury. For purposes of this opinion only, the examiner should assume that the Veteran is a credible historian. See April 2020 JMR. Specifically, in providing these opinions, the examiner must consider and discuss the Veteran’s lay statements regarding his in-service injury associated with the right big toe and his statements regarding continuous symptoms since service. See April 2020 JMR. The Board will be unable to decide the Veteran’s claim without these considerations. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the benefits sought on appeal are not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.