Citation Nr: 21063347 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-34 874 DATE: October 14, 2021 REMANDED Entitlement to service connection for arthritis of the left great toe is remanded. Entitlement to service connection for bilateral pes planus is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from September 1979 to July 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Board, in pertinent part, denied the claims of entitlement to service connection for arthritis of the left great toe and bilateral pes planus. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court granted a March 2021 Joint Motion for Partial Remand (JMPR) vacating the Board's March 2020 decision, and remanding the matter for further consideration and instructions consistent with the JMPR. In June 2021, the Board remanded the issues on appeal for further development. The issues have returned to the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for arthritis of the left great toe is remanded. Pursuant to the June 2021 remand instructions, the Veteran was afforded a VA examination for his feet in July 2021. The Board finds that the opinion associated with this VA examination is inadequate. The July 2021 VA examiner provided a diagnosis of left great toe arthritis. The examiner opined that the Veteran's left great toe arthritis was less likely than not incurred in or caused by service. The examiner indicated that there is no evidence of record that the Veteran was seen or diagnosed with arthritis of the left great toe while in service. The Board finds that this opinion has no probative value as it relies on the absence of evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, the Board finds the July 2021 VA opinion to be inadequate. Therefore, in light of the above, a new VA medical opinion is warranted. 2. Entitlement to service connection for bilateral pes planus is remanded. During the VA examination for the Veteran's feet in July 2021, the examiner did not provide a diagnosis of bilateral pes planus. Thus, an opinion addressing this condition was not provided. However, a May 2019 VA treatment record shows a diagnosis of bilateral pes planus. The Board concludes that a remand is necessary because despite the lack of finding of a diagnosis of bilateral pes planus during the July 2021 VA examination, there was a diagnosis related to such during the claims period. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the "current disability" requirement for service connection is met if disability is shown at any time during the claims period). Thus, based on the above, a VA opinion is warranted. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, return the claims file to the examiner who performed the July 2021 VA examination for foot conditions. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If the July 2021 examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a) Whether the Veteran's diagnosed arthritis of the left great toe is at least as likely as not related to an in-service injury, event, or disease. (b) Whether any diagnosed bilateral foot condition during the claim period is at least as likely as not related to an in-service injury, event, or disease. A May 2019 VA treatment record shows a diagnosis of bilateral pes planus. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must specifically consider and discuss the lay statements of record, regarding his continuity of symptomology since service and the opinion and rationale should reflect such consideration. The examiner may not merely dismiss the Veteran's statements due to lack of contemporaneous medical records. Notably, the absence of documented evidence of a diagnosis or associated symptoms during and shortly after service should not, alone, serve as the sole basis for a negative opinion. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.