Citation Nr: 21004860 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-15 353 DATE: January 28, 2021 REMANDED Entitlement to service connection for back disability, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for right foot disability, to include as due to service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran served on active duty for training from January 1984 to June 1984 and on active duty from December 1989 to February 1992 and from March 2003 to February 2004. The appeal was before the Board in November 2017, when the Veteran’s claims for entitlement to service connection for a back disability and a right foot disability were denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated November 2018, the Court vacated the Board’s November 2017 decision and remanded the matter to the Board for compliance with the instructions included in the November 2018 Joint Motion for Remand (JMR) by the parties. The Board most recently remanded these issues to the RO for additional development in June 2020. Unfortunately, as explained below, additional remand is necessary. 1. Entitlement to service connection for back disability, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for a back disability, which he asserts was caused by his service-connected left ankle disability. The Veteran was afforded a VA examination of his back in December 2012. The VA examiner determined that the Veteran’s back disability was less likely than not related to service because the in-service injury was acute and resolved. The examiner noted that the type of ankle injury reported by the Veteran was less likely to cause current symptoms of muscle spasms and back pain. The examiner did not expressly address aggravation or the weight shifting theory later addressed in the record and during a Board hearing. In a September 2017 letter, the Veteran’s primary care physician opined that the Veteran’s back pain was not likely a direct injury but more likely than not an indirect consequence of his left ankle injury due to altered weight-bearing and asymmetric gait. Corresponding clinical records do not mention that the Veteran had an altered gait or shifted his weight when he walked and appear inconsistent with the physician’s conclusion. The Veteran attended another VA examination in July 2020. The examiner determined that the Veteran’s lumbar spondylosis with lumbosacral disc herniation and protrusion was less likely than not caused or aggravated by his left ankle disability. The examiner explained that he did not observe, and the records did not suggest, that the Veteran walked with an abnormal gait, however, an altered gait due to an ankle condition would not generally cause back conditions as there is no functional over compensatory relationship between both body parts including a lack of contralateral findings involving spines. In October 2020 correspondence, the Veteran objected to the July 2020 VA examination. He reported that the examiner did not perform any examination on his back and only observed his right foot while the Veteran was wearing a sock. The Veteran stated that foot problems had the potential to affect someone’s “lower body, from the ankle, to the knee, to the hip and then to the lower back,” citing to “the American College of Foot and Ankle Surgeons.” Although not reflected in the June 2017 Board hearing transcript, the Veteran asserted that he was promised new x-rays of his back and right foot during his hearing. Because he had not received new x-rays and believed the July 2020 VA examination was insufficient, the Veteran requested a new, more thorough, examination with diagnostic testing. Affording the Veteran the benefit of the doubt, a new examination should be afforded upon remand. Additionally, the Veteran contends that he does walk with an altered gait due to his left-ankle disability. Treatment records have not been associated with the claims file in several years. Upon remand, the RO should attempt to associate the Veteran’s private treatment records with the claims file. 2. Entitlement to service connection for right foot disability, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for a right foot disability, also claimed as bunion, pes planus, and right foot popping, as due to his service-connected left ankle disability. The Veteran was afforded a VA examination in December 2012. The examiner determined that the Veteran’s right foot hallux valgus and pes planus were less likely than not caused by his left ankle because there was no nexus between an ankle sprain and the development of either condition in the contralateral foot. The examiner did not comment on the Veteran’s right foot popping. A 2017 private medical opinion concluded that the Veteran’s right plantar fasciitis was more likely than not an indirect consequence of his left ankle injury. He noted 2004-2005 podiatry treatment which reflects that a right foot heel spur and hallux valgus did not appear to be directly related to the left ankle injury, but did not explain why he arrived at a different conclusion. He also did not provide a nexus opinion regarding pes planus or right foot bunion. Upon VA examination in July 2020, an examiner determined that the Veteran’s right foot plantar fasciitis and pes planus were less likely than not caused or aggravated by his left ankle disability. The examiner explained the etiology of the right foot conditions and the lack of a known nexus between those conditions and an opposite ankle condition. As stated above, the Veteran submitted correspondence in October 2020 contesting the findings of the July 2020 VA examiner. As explained above, remand is warranted in order to provide the Veteran the opportunity to attend another VA examination and associate any outstanding treatment records with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any treatment he has received for his right foot and back within the last ten years. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Then, schedule the Veteran an examination from an appropriate clinician regarding whether the Veteran’s back disability is at least as likely as not proximately due to or aggravated by his service-connected left ankle disability. Review of the entire claims file is required, and the examiner is asked to comment on the October 2020 correspondence and reference to the American College of Foot and Ankle Surgeons in any opinion rendered. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Schedule the Veteran an examination from an appropriate clinician regarding whether the Veteran’s right foot disabilities are at least as likely as not proximately due to or aggravated by his service-connected left ankle disability. Review of the entire claims file is required, and the examiner is asked to comment on the October 2020 correspondence and reference to the American College of Foot and Ankle Surgeons in any opinion rendered. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of the benefits requested is not awarded, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.