Citation Nr: 21003249 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 13-06 543A DATE: January 21, 2021 REMANDED Entitlement to service connection for a right foot disability is remanded. Entitlement to special monthly compensation (SMC) based on the need of regular aid and attendance/housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from July 3, 1990 to August 10, 1990, and on active duty for training (ACDUTRA) from August 10, 1993 to October 13, 1993. He also had an unverified period of service in approximately 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2010 and August 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in September 2017. 1. Entitlement to service connection for a right foot disability is remanded. The Veteran seeks service connection for a right foot disability. Specifically, the Veteran contends that his preexisting right foot disability was aggravated by his active military service. As an initial matter, the Board notes that there is evidence that the Veteran had fractured his right foot at the age of 13. On his June 1990 pre-induction medical examination, the Veteran checked the box for "broken bones" in the report of medical history, and the examiner noted a history of a fractured right fourth metatarsal when the Veteran was 13 years old. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Given that the Veteran’s right foot condition was noted at the time of his enlistment, he is not entitled to the presumption of soundness for this particular disability when entering service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A preexisting injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding (by clear and unmistakable evidence) that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). In accordance with the September 2017 Board remand, the Veteran had an examination for his right foot condition in August 2020. The examiner opined that the Veteran’s right foot condition, which 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. The examiner stated that medical records show that the Veteran was diagnosed with degenerative changes (osteoarthritis) to his right foot in October 2004, 11 years after service. The examiner further noted that medical records show the Veteran suffered a fracture when he was 13, and that he re-injured his foot twice. The examiner noted that risk factors for developing osteoarthritis include “age, female gender, obesity, anatomical factors, muscle weakness, and joint injury”. The examiner stated that the Veteran’s right foot pain has not changed and there is nothing to support progression of the injury during service. The examiner noted that the Veteran came into service with a history of a fracture to the foot which could be why he has now developed degenerative changes. Furthermore, the examiner stated that the Veteran has risk factors associated with developing osteoarthritis listed above. The examiner stated that she was unable to say without mere speculation that his osteoarthritis is a progression of his in-service right foot injury. The August 2020 medical opinion is not in compliance with the September 2017 Board remand. The examiner was instructed to specifically reference the pertinent service treatment records, to include the Veteran’s complaints of right foot pain with marching and running and a diagnosis of foot bone spur in July 1990. Furthermore, the examiner was also instructed to fully consider the Veteran’s lay statements of record. Particularly, the examiner was instructed to consider the Veteran’s lay statements regarding the symptoms he experienced in service, that he reinjured his right foot while he slipped on a wet bridge, that his right foot condition was worse off, and that he experienced symptoms ever since his right foot injury in service. It is not clear if the examiner fully considered the pertinent medical evidence and ay statements as instructed in the September 2017 Board remand. Since the Board’s remand instructions have not been complied with, this issue must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 2. Entitlement to SMC based on the need of regular aid and attendance/housebound status is remanded. Since the issue of entitlement to service connection for a right foot disability is being remanded, the issue of entitlement to SMC based on the need of regular aid and attendance/housebound status is inextricably intertwined and must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified VA medical professional as to the Veteran’s right foot condition. The record must be made available to and reviewed by the VA examiner. Following a review of the entire record, the examiner should address the following: Whether there was an increase in severity of the Veteran’s right foot condition during service. If so, the examiner should opine as to whether that increase was clearly and unmistakably (i.e. there is undebatable evidence) due to the natural progression of the disability. In forming the opinion, the examiner is requested to specifically reference the pertinent service treatment records, to include the Veteran’s complaints of right foot pain with marching and running and a diagnosis of foot bone spur in July 1990. See VBMS, document labeled STR - Medical, receipt date 08/09/2007; see also VBMS, document labeled STR - Medical, receipt date 08/23/2014. Furthermore, the examiner is also asked to fully consider the Veteran’s lay statements of record concerning symptoms experienced in service and continued after service, indicating that he reinjured his right foot while he slipped on a wet bridge, and that his right foot condition was worse off and he experienced problem ever since his right foot injury in service. See VBMS, document labeled VA 21-4138 Statement In Support of Claim, receipt date 11/26/2010. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making any determination. 2. Following completion of the development requested, conduct any other development deemed necessary and then readjudicate the Veteran’s claims. If any of the claims remain denied, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim(s) to the Board. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.