Citation Nr: 21004793 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-33 711 DATE: January 28, 2021 REMANDED Entitlement to service connection for bilateral foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from August 1980 to December 1980, with subsequent active duty from November 1990 to May 1991 and June 2004 to April 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2019, the Board, in pertinent part, denied service connection for a bilateral foot disorder and the Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2020, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s June 2019 decision to the extent that it denied service connection for a bilateral foot disorder. In October 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for bilateral foot disorder. In light of the deficiencies in an August 2013 VA examiner’s opinion, as found by the parties in the JMPR, the Board remanded the issue on appeal for an addendum opinion in October 2020. Specifically, the Board requested that the clinician address the etiology of all bilateral foot disorders present during the appeal period, with consideration and discussion of the lay statements of record and a private physician’s September 2020 opinion. Following examination of the Veteran in November 2020, the VA examiner provided opinions with respect to the diagnoses of pes cavus, neuroma of the right second interdigit space, hammertoes, atrophied fat pads, and degenerative arthritis. In pertinent part, the Board finds the VA examiner’s perfunctory “lay statements are appreciated” dismissive and, therefore, an inadequate discussion of the statements provided by the Veteran and his fellow service members, particularly in light of the Court’s findings and the Board’s specific request to consider and address such statements. Furthermore, in light of the November 2020 VA examiner’s indication that pes cavus and hammertoes existed prior to the Veteran’s period of service from June 2004 to April 2005, where he alleges his bilateral foot disorder had its onset, as evidenced by June 1980 and November 1995, service treatment records, respectively, an opinion addressing the correct legal standard for potentially pre-existing disorders is necessary. Consequently, a remand for a new examination and addendum opinion is necessary to correct such inadequacies and ensure the completeness of the medical evidence prior to the Board’s adjudication of the Veteran’s claim. The matter is REMANDED for the following action: Schedule the Veteran for an appropriate examination with a clinician other than the examiner who conducted the November 2020 examination who can provide an addendum opinion addressing the etiology of all foot disorders diagnosed during the pendency of the appeal. Following a review of the record, to include a copy of this Remand, and all necessary testing, the clinician should address the following inquiries: (A) As pertinent to the Veteran’s diagnosed pes cavus and hammertoes, offer an opinion as to whether there is clear and unmistakable evidence that the disorder pre-existed his period of service from June 2004 to April 2005. In this regard, he or she should consider the notation of pes cavus on examination in June 1980 and hammertoes on examination in November 1995. (i) If there is clear and unmistakable evidence that the disorder(s) pre-existed the Veteran’s period of service from June 2004 to April 2005, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during such period of service. If there was an increase in the severity of the Veteran’s disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If there is no clear and unmistakable evidence that such disorder(s) pre-existed the Veteran’s period of service from June 2004 to April 2005, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, such period of service, to include his documented in-service complaints referable to the right foot in November 2004, December 2004, and February 2005. (B) As pertinent to the Veteran’s diagnosed neuroma second intermet space of the right foot, atrophied fat pads, and degenerative joint disease of the bilateral feet, the clinician should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, his period of service from June 2004 to April 2005, to include his documented in-service complaints referable to the right foot in November 2004, December 2004, and February 2005. (C) For the diagnosis of arthritis of the bilateral feet, the clinician should offer an opinion as to whether such manifested to a compensable degree within one year of the Veteran’s discharge from active duty service in May 1991 or April 2005 (i.e., by May 1992 or April 2006). If so, please describe the manifestations. In offering such opinions, the clinician should consider and discuss the lay statements of record from the Veteran and his fellow service members, C.E. and D.P., regarding the in-service onset (in 2004) and treatment of his claimed bilateral foot disorder and continuity of symptomatology. Additionally, the clinician should consider and discuss Dr. T.B.’s September 2020 opinion that in-service overuse and trauma potentially caused the Veteran’s current foot disorder. The examiner is advised that the absence of evidence of complaints, treatment, or a diagnosis referable to a foot disorder in the Veteran’s service treatment records cannot serve as the sole basis for a negative opinion. The examiner is further advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.