Citation Nr: 21063748 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-27 630 DATE: October 15, 2021 REMANDED Entitlement to service connection for a right foot disorder, including but not limited to calluses or hyperkeratosis, is remanded. Entitlement to service connection for a left foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A hearing before the undersigned Veterans Law Judge was held via videoconference in February 2020, with the Veteran and his representative present. The transcript from the hearing has been associated with the claims file. In short, the Board remanded the Veteran's claims on March 24, 2020, so that he could submit to VA examinations. See BVA Remand ( Mar. 24, 2020 ). While the Veteran sought contemporaneous medical attention during service (which were reflected in service treatment records), then present diagnoses were not apparent as the Veteran never or hardly ever sought medical treatment after discharge. Nevertheless, the Board concluded that examinations were warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312. Meanwhile, the Veteran is also entitled to substantial compliance with previous remand directives, including but not limited to the adequacy of examinations rendered. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Among the Veteran's claims on appeal as of the March 24, 2020 remand, all except for the bilateral feet were granted service connection and assigned initial ratings. See Rating Decision (Mar. 9, 2021). As the grants of service connection for a right shoulder strain, gastritis ulcer and pseudofolliculitis barbae are full grants of the appeal sought, these issues are no longer in appellate status. If the Veteran should disagree with any initial rating, i.e.: if he wishes to pursue higher ratings or earlier effective dates for the awards granted, then a separate Notice of Disagreement must be received within one year of the rating decisionin this case, by March 9, 2022. As for the claims for service connection for a bilateral foot disorder, the Veteran was issued a Supplemental Statement of the Case (SSOC) on March 9, 2021. The Board accordingly reasserts jurisdiction. For the reasons below, the Board ultimately concludes that the VA examinations for the bilateral foot disorders were not adequate; therefore, a remand is required. The Board sincerely regrets additional delay that may be incurred, but the Board concludes that it is precluded from issuing final determinations herein. See Stegall v. West, supra; Barr v. Nicholson, supra. 1. Entitlement to service connection for a right foot disorder, including but not limited to calluses or hyperkeratosis, is remanded. 2. Entitlement to service connection for a left foot disorder is remanded. The Board concludes that the examinations of the feet are not adequate because the negative nexus opinions appear to be based upon inaccurate factual premises, see Reonal v. Brown, 5 Vet. App. 458 (1993). To wit, the examiner stated that "the Veteran was not seen in service for the left foot," see VA Exam ( Mar. 8, 2021 ), at Question No. 3c, even though his service treatment records strongly suggest at least one complaint of a bilateral (let alone the left) foot disorder, see contra STR ( Nov. 3, 1972 ), and the examiner was specifically asked to consider that evidence after remand. See Stegall, supra. The Veteran was noted as having bilateral hallux valgus and hammertoes upon examination; "however, for purposes of this exam, these diagnoses are being omitted as these conditions are not being claimed and he denies foot pain." See VA Exam (Mar. 3, 2021), at Question No. 19. The Veteran is prosecuting a claim for "a bilateral foot disorder," and there is no indication that he has ever intended to limit the scope of his claim. The Board concludes that the examiner's assumption that these diagnoses do not apply to the claims for service connection herein renders the examination inadequate. See Reonal v. Brown, supra; Stegall v. West, supra. Furthermore, the examiner who supplied a negative nexus also mentioned the Veteran's bilateral hammertoes and hallux valgus, but dismissed these as "incidental findings that do not result in foot pain or functional loss, and would be considered part of the aging process or as a result of the steel toed boots the Veteran reported wearing for work." See VA Exam (Mar. 8, 2021), at Question No. 3c. During active duty service, one podiatrist referred the Veteran "for therapy and corrective shoes if necessary." See STR (Mar. 14, 1973). The examiner was specifically asked to consider that evidence after remand. By attributing these foot disorders to post-discharge work without fully explaining why it is not at least 50 percent likely that the Veteran's foot disorders are attributable to service (including but not limited to due to any corrective shoes that may have been prescribed to him during service), the Board concludes that the examiner did not fully consider evidence specifically identified in the last remand. See Stegall v. West, supra. Finally, the Board notes that the Veteran appears to have undergone treatment for a corn on the fifth toe of the right foot. Whereas a March 2021 examiner notes that the Veteran completely denied foot pain, see, e.g.: VA Exam (Mar. 8, 2021), at Questions No. 1 et seq (indicating a diagnosis of "normal," and emphasizing denial of foot pain, including specifically as to the right fifth toe), an April 2021 examiner indicated that the Veteran has pain in the right foot alleviated by 800 milligrams of ibuprofen thrice daily. See VA Exam (Apr. 28, 2021), at Question No. 2A. The Board cannot reconcile these two opposite conclusions as pertaining to foot pain. Additionally, the Board concludes that as hyperkeratosis is a skin disease, but "foot pain" and an ibuprofen regimen do not appear to be relevant to a skin disorder, a skin examination is warranted. See McLendon v. Nicholson, supra; Stegall v. West, supra. For all of the above reasons, the Board concludes that the Veteran has not been afforded substantial compliance with the previous remand directives, because examinations are inadequate with irreconcilable findings and do not adequately discuss the relevance or lack thereof of previously identified evidence within the service treatment records. The claims are remanded accordingly. The matters are REMANDED for the following action: 1. The Veteran and his representative should be given an opportunity to procure lay statements from fellow servicemembers or family members who may be able to attest to the Veteran's conditions, as well as to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. The Federal Circuit has held that VA's duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, schedule the Veteran for examinations by a podiatrist (and also a dermatologist) of the bilateral feet, and forward the claims file, to include a copy of this remand, to the examiners. By way of background, the Veteran's feet were previously examined by nurse practitioners, but their March 2021 examinations and opinions are inadequate for failing to address evidence previously identified as pertinent. Also, the Veteran appears to be diagnosed with hyperkeratosis, which is a skin disorder manifesting on the Veteran's right fifth toe, but not a musculoskeletal disorder. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should clearly identify all current disabilities of the skin (i.e., the corn on the right fifth toe) and bilateral feet (specifically including, but not limited to, corns of the fifth toe on the right foot, bilateral hammertoes, bilateral hallux valgus, and any other disorder including but not limited to foot pain). The examiner should note that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability for VA purposes if it results in functional impairment. If any disorder can be ascertained as having existed during the period on appeal but now resolved, the examiner should state so. Then, with respect to each such disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. The examiner should specifically consider the Veteran's documented service treatment history, including but not limited to the following records: (a.) Apr. 12-30, 1973 (corn of the fifth toe of the right foot); (b.) Nov. 3, 1972, Mar. 14, 1973 (other foot conditions, including pain in the bilateral great toes, and ultimately referring the Veteran to therapy and possible corrective footwear). A rationale should be provided for any opinion offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.