Citation Nr: 21065642 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 10-26 187 DATE: October 26, 2021 REMANDED Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected bilateral ankle disability, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2008 and April 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded in October 2015, January 2020, and July 2021 for further development. Unfortunately, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although a medical opinion was obtained in August 2021, for the reasons provided below, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to service connection for a bilateral foot disability, to include as secondary to service-connected bilateral ankle disability. The Veteran's attorney contends that the August 2021 VA opinion is inadequate. Specifically, it is contended that the Veteran's claimed disabilities are subsequent manifestations of the ankle arthritis and osteoarthritic changes of the feet shown during service, and are related to the in-service aggravation of preexisting ankle disability. See Third Party Correspondence (September 2021). The Board notes that the January 2020 Board decision indicated that the April 2012 VA opinions on direct service connection were facially valid. Upon reexamination of the evidence of record, the Board finds that the April 2012 VA opinion, as to bone spurs, is inadequate as it indicates that it was based on an inaccurate factual premise. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (an adequate medical opinion must be based on an accurate factual premise and consideration of a veteran's prior medical history). The April 2012 VA opinion shows that the examiner indicated that bone spurs were not shown until May 2008. However, the medical evidence of record at the time of the April 2012 opinion shows an impression of bilateral calcaneal spurs on a January 1996 radiology report. Additionally, the April 2012 opinion stated that bone spurs are caused by wear and tear, but that "of the 7 months that the veteran spent on active duty, only a fraction of it was spent performing activities which caused wear and tear." See VA Examination (April 2012). However, the examiner provided no definition of what constitutes "wear and tear." The examiner also provided no indication of how it was determined that the Veteran performed no activities which would cause wear and tear of the feet. Notably, the record contains no military personnel records, but indicates that the Veteran completed basic training as he was assigned to Fort Benning, Georgia for eight weeks and then transferred to Fort Huachuca, Arizona before his medical discharge. Thus, the April 2012 VA opinions on direct service connection for bone spurs is inadequate. The Board also finds that, although the August 2021 VA examiner considered the Veteran's contention that aseptic necrosis interrupted circulation to his feet as directed, the remainder of the opinion is supported by inadequate reasoning. Essentially, the examiner reasoned that the Veteran's foot disabilities are due to altered weight bearing mechanics and wear and tear, but provided no reasoning why such disabilities are not related to the Veteran's altered weight bearing mechanics shown during service. Although the Veteran's service was brief, the record shows that the Veteran was qualified for service despite flat feet, he had no feet complaints until a week into basic training, and the first indication of altered mechanics, or forefoot pronation, was months into service in March 1969. An adequate medical examination report or opinion must "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Regarding bone spurs, hallux valgus, and great toe joint degeneration, the examiner reasoned that bone spurs are caused by altered biomechanics of weight bearing activity over time, and age-related wear and tear. Additionally, the examiner reasoned that there was no abnormality of the ankles on X-rays from 1997 which would indicate a severe condition which would cause bone spurs. However, the examiner provided no reasoning why bone spurs, hallux valgus, and great toe joint degeneration are not causally related to the Veteran's altered biomechanics during service, noted as forefoot pronation in March 1969. Notably, pes planus was shown at entrance into service in July 1968 and the Veteran was determined to be qualified for service, but there was no indication of pronation at that time. Although the examiner reasoned bone spurs were not caused by the service-connected ankle disability, as no ankle condition was shown in 1997, the examiner provided no reasoning why the bilateral calcaneal spurs shown in 1997 were not at least as likely as not related to the Veteran's forefoot pronation shown during service. Additionally, the examiner provided no reasoning why the lack of a severe ankle condition in X-rays from 1997 is determinative. Notably, lateral view X-rays taken during service in October 1968 showed no bony abnormality; however, multiple view X-rays taken during service in November 1968 were interpreted as "beaking of the R tarsal navicular associated with somewhat sclerotic appearance... [and that] osteochondritis at this level is suggested." STR Medical (February 1969). However, the 1997 X-rays provide no indication of the type of view, or number of views, obtained. Indeed, the examiner provided no reasoning for how it was determined that the Veteran's necrosed bone healed or that the 1997 X-ray findings that there were no bony abnormalities were sufficient to determine such, given that October 1968 single view X-rays showed no bony abnormality, but November 1968 multiple view X-rays indicated sclerosis and osteochondritis. Therefore, to ensure that VA has met its duty to assist, remand is required. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. 2. Entitlement to TDIU. The issue of TDIU is inextricably intertwined with the claim for service connection as a favorable decision on that issue will change the Veteran's combined disability rating and impact his eligibility for TDIU. Therefore, the Board must defer consideration of that claim at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records to confirm the circumstances of the Veteran's service. 2. Thereafter, obtain an addendum opinion from an appropriate clinician on the etiology of the Veteran's bone spurs, hallux valgus, and great toe joint degeneration. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: Direct Service Connection (a) Whether the Veteran's bone spurs, hallux valgus, or great toe joint degeneration at least as likely as not (1) began during active service or (2) is related to an in-service injury, event, or disease to include altered body mechanics from pain and the forefoot pronation shown in March 1969. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. Secondary Service Connection (b) Whether the Veteran's bone spurs, hallux valgus, or great toe joint degeneration is at least as likely as not (1) proximately due to service-connected bilateral ankle disability; or (2) aggravated beyond its natural progression by service-connected bilateral ankle disability. Provide a rationale that addresses causation and aggravation as independent concepts. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of medical studies or literature supporting causation or aggravation. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.