Citation Nr: 21062715 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-23 752 DATE: October 12, 2021 REMANDED Entitlement to service connection for a right foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1959 to January1962. In August 2018, the Veteran and his wife, with the assistance of an interpreter, presented testimony before the undersigned Veterans Law Judge. A copy of the transcript is associated with the claims file. This appealed issue was previously before the Board in February 2019, when it was determined that a remand was necessary to determine the nature and etiology of the Veteran's right foot disorder. The claim has now been returned to the Board for further appellate consideration. 1. Right foot disorder. The Veteran is seeking service connection for a right foot disorder that he states is due to his military service. Specifically, the Veteran claims that he suffered from a cold injury in service and that he has suffered from residuals of that in-service injury. See August 2018 Hearing Transcript. By way of background, the Regional Office (RO) issued a decision dated in August 2021 granting the Veteran's service-connected claim for right shoulder strain. See August 2021 Rating Decision Narrative. In compliance with the February 2019 Board remand VA has complied with 38 C.F.R. § 3.159(c)(e), the Veteran submitted VA Form 21-4142a and VA requested medical record on two occasions and informed the Veteran in October 2020 and November 2020 that no records were provided to VA. See October 2020 Notification Letter; November 2020 notification Letter. Subsequently, the veteran was scheduled for a VA examination in August 2021 where the examiner diagnosed the Veteran with a right foot calcaneal spur. See August 2021 VA Foot Conditions Examination. In the accompanying opinion, the examiner opines that the Veteran's right foot disorder is less likely than not incurred in or caused by the claimed in-service right foot disorder. See August 2021 VA Examination Opinion. The examiner noted the Veteran's service treatment record (STR) reveal complaints of cold feet in January 1961 and the record is devoid of further complaints of the right foot during service. As such, the examiner opined there is insufficient evidence to relate the Veteran's current right foot condition to service. Id. The Board finds the opinion inadequate as the examiner relied on an absence of medical records in providing the opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The matter is REMANDED for the following action: 1. Obtain any updated medical records related to the Veteran's claims on appeal. 2. Upon completion of the above to the extent possible, obtain an opinion from an appropriate physician. The physician should provide an opinion responding to the whether it is at least as likely as not (50 percent or higher degree of probability) that any current right foot disorder is related to active service. (a.) Please discuss whether the Veteran's assertions are consistent with medical knowledge or implausible? Do the Veteran's reports about his symptoms align with how the disability is known to develop? (b.) The VA examiner must consider the Veteran's lay statements, to include his statements about his in-service right foot cold weather injury. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The physician is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the physician should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE, CORRECTIVE ACTION MUST BE IMPLEMENTED.IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TOTHE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.