Citation Nr: 21003304 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-23 034A DATE: January 21, 2021 REMANDED Entitlement to service connection for a right foot disability, to include as secondary to service-connected right ankle disability is remanded. Entitlement to service connection for a left foot disability, to include as secondary to service-connected right ankle disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to service-connected right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1997 to May 2004. In a January 2019 decision, the Board denied the Veteran’s claims for entitlement to service connection for a left ankle disability, and bilateral foot disabilities. The Veteran appealed the January 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). A Joint Motion for Partial Remand (JMPR) was filed and in October 2019, the Court issued an Order vacating the January 2019 denial, and returned the case to the Board for action consistent with the JMPR. The parties agreed the Board failed to ensure there was a sufficient record upon which to decide the claims, as VA medical records from Big Spring VA Medical Center from June 2009 appeared to be outstanding. See October 2019 JMPR. Further, the parties agreed that the Board erred in relying on a January 2018 VA medical examination that was found to be inadequate in regard to the theory of aggravation. Finally, the parties concluded that the Board should have provided additional discussion regarding the necessity of imaging of the Veteran’s ankles and feet as the Board had previously directed the agency of original jurisdiction (AOJ) to obtain such. See April 2017 Remand. In an April 2020 decision, the Board remanded all issues and directed the AOJ to request outstanding VA medical records and obtain medical opinions as necessary to the claims. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding these issues, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A significant factor in the development of this appeal has to do with the fact that prior medical experts in January and March 2016 were unable to provide medical opinions addressing the etiology of the Veteran’s disabilities without imaging. In its most recent remand, the Board’s directed the AOJ to obtain an assessment from an examiner that included discussion as to whether imagining was necessary to address the key medical questions pertaining to etiology in this case. In a subsequent July 2020 examination report, the examiner provided negative nexus opinions, but simply stated that x-rays were not clinically indicated the day of the examination. She provided no rationale or explanation as to why imaging was not completed or otherwise not necessary before providing an opinion addressing causation and/or aggravation of the claimed disabilities. Moreover, requests for VA treatment records continue to be fulfilled without inclusion of documents scanned into VistA Imagining Display from the Big Spring VA Medical Center dated in June 2009. As this was a specific reason for vacating the Board’s prior denial of these claims, such records must be obtained and associated with the claims file prior to adjudication, if available. If the records are not available, this must be specifically indicated by the AOJ. The matters are REMANDED for the following action: 1. Obtain all VA medical records from Big Spring Medical Center, including all scanned documents visible in VistA Imaging Display from June 2009. If these specific records cannot be found, or are otherwise unavailable, this should be made clear in documentation uploaded to the Veteran’s claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed bilateral foot or left ankle disorders. The claims folder must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his disability. If imaging is required to answer the questions below, such should be performed with the consent of the Veteran. If imaging is not required to answer the questions below, please specifically explain why this is the case. Upon review of the file, and interview and examination of the Veteran, the examiner is asked to respond to each of the following: (a.) Identify all current bilateral foot and left ankle disabilities. The examiner is reminded that pain alone may constitute a disability if it causes functional impairment. (b.) Is at least as likely as not that the Veteran’s claimed bilateral foot disabilities are either caused or aggravated by the Veteran’s service-connected right ankle disability, to include any gait disturbance? The examiner is asked to comment on the May 2007 VA treatment note regarding pain in both feet and from the Veteran’s right ankle. (c.) Is at least as likely as not that the Veteran’s claim left ankle disability is caused or aggravated by the Veteran’s service-connected right ankle disability, to include any gait disturbance? All opinions should be supported by a medical explanation or rationale. 3. Then, readjudicate the issues on appeal. If the benefits sought remain denied, send the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.