Citation Nr: 21065959 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-34 737 DATE: October 28, 2021 REMANDED Entitlement to service connection for bilaterally shortened metatarsals is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, also claimed as numbness, is remanded. INTRODUCTION The Veteran served honorably on active duty in the United States Marine Corps, including in combat, during the World War II Era, from April 1944 to April 1946. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012 and September 2015 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing conducted in December 2018. A transcript of the hearing is of record. When these matters came before the Board in June 2019, they were denied on the merits. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which, in December 2020, issued a Memorandum Decision remanding both issues for further development and readjudication consistent with the terms therein. The Board also notes the issues of entitlement to service connection for right and left shoulder disabilities and a left foot disability, other than shortened metatarsal disorder, were remanded by the Board's June 2019 decision. Subsequently, these issues were denied by the Board's decision dated January 2021 and, therefore, are no longer on appeal before the Board. While further delay is regrettable, for the reasons set forth below, the Board finds remand is again required. Finally, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). REASONS FOR REMAND Entitlement to service connection for bilaterally shortened metatarsals is remanded. The Veteran contends that his congenital bilaterally shortened metatarsals (brachymetatarsia) worsened due to military service. A Medical History report completed in April 1944 at the time of his military induction notes shortened right fourth and left third and fourth metatarsals. However, a Report of Physical Examination completed in April 1944, as well as in April 1946 at the time of his military discharge, indicate normal extremities including feet. While the medical evidence of record notes the congenital nature of the Veteran's brachymetatarsia, the question of whether the condition constitutes a disease or defect for purposes of service connection has not been adequately addressed by a VA medical examiner. For example, although a July 2019 VA examination report (submitted August 2019) notes the Veteran has "a history of congenital defect of shortened metatarsals to bilateral feet," it also indicates the Veteran uses an assistive device (i.e., walker) due to brachymetatarsia, which suggests the condition is not more or less stationary in nature and is generally capable of deterioration. If the condition is a congenital defect, an opinion addressing any additional disability resulting from the defect being subject to or aggravated by a superimposed in-service disease or injury (e.g., marching) is required. If brachymetatarsia is determined to be a disease, then the presumption of soundness is applicable and should be addressed, i.e., whether there is clear and unmistakable evidence that: (1) the brachymetatarsia preexisted service and, if so, (2) whether it was not aggravated by service beyond its natural progression. 38 C.F.R. § 3.304(b); Quirin, 22 Vet. App. at 396 (citing Monroe v. Brown, 4 Vet. App. 513, 515 (1993)) (the presumption of soundness applies to congenital diseases). Entitlement to service connection for left lower extremity peripheral neuropathy, also claimed as numbness, is remanded. In October 2012, the Veteran submitted his claim for service connection for: left foot pain and discomfort; peripheral neuropathy left lower extremity; and left foot numbness. According to the Veteran, his "medical condition was aggravated in participating in training while on active duty." The December 2012 Rating Decision on appeal combined the Veteran's claims for peripheral neuropathy of the left lower extremity and left foot numbness for adjudication purposes, as did the June 2017 Statement of the Case (SOC). The Board finds the issue of entitlement to peripheral neuropathy or numbness of the left lower extremity is inextricably intertwined with the service connection claim for bilaterally shortened metatarsals being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined). Although peripheral neuropathy is not included among the Veteran's active problems according to VA treatment records as recent as January 2021, a VA examination report dated July 2019 (submitted August 2019) notes the Veteran "feels tingling on his feet and pain." As this may represent an additional disability resulting from a congenital defect being subject to or aggravated by a superimposed in-service disease or injury, remand for a VA medical opinion is required. Id. Accordingly, these matters are REMANDED for the following actions: 1. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide opinions regarding the nature, severity, and likely etiology of the Veteran's bilaterally shortened metatarsals and left lower extremity peripheral neuropathy or numbness. The examiner must obtain a full history from the Veteran. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as pre-service, in-service, and post-service observable symptomology and functional limitations. All pertinent symptomology, including when initially manifested, any continuity of symptoms since military service, and any progression must be reported in detail. Any indicated studies must be performed. Based upon a review of all pertinent documents in the Veteran's claims file including medical treatment and examination records, lay statements, and the examination results, the examiner must offer an opinion based upon an accurate medical history with clear conclusions and supporting data as to the following: (a.) Whether the Veteran's bilaterally shortened metatarsals are a congenital disease or congenital defect? **Defects are defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature. VAOGCPREC 82-90. A disease, on the other hand, is defined as "any deviation from or interruption of the normal structure or function of any part, organ, or system of the body..." and "a condition considered capable of improving or deteriorating." Id. "Any worsening or change at all might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." See Quirin, 22 Vet. App. at 395 (citing VAOGCPREC 82-90). (b.) If it is determined that bilaterally shortened metatarsals represent a congenital disease, whether clear and unmistakable evidence establishes that it preexisted military service? **Clear and unmistakable evidence is that which is manifest and undebatable. (c.) If it is determined that bilaterally shortened metatarsals represent a congenital disease that clearly and unmistakably preexisted military service, whether clear and unmistakable evidence establishes it was not aggravated during military service? **If there was aggravation, the examiner must explain whether it was due to the natural progression of the condition. (d.) If it is determined that bilaterally shortened metatarsals represent a congenital defect, whether it is at least as likely as not (i.e., 50 percent probability or greater) there was disease or injury superimposed upon it as a result of military service? (e.) If the Veteran's bilaterally shortened metatarsals represent an acquired disorder, whether it is at least as likely as not (i.e., 50 percent probability or greater) the condition is due to, related to, or otherwise etiologically associated with or aggravated by his military service? (f.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) the Veteran's claimed left lower extremity peripheral neuropathy or numbness represents an additional disability resulting from a congenital defect (i.e., brachymetatarsia) being subject to or aggravated by a superimposed in-service disease or injury; or, manifested within one year of military discharge or is otherwise due to, related to, or etiologically associated with his military service? In offering the above opinions, the examiner must consider, discuss, and reconcile as necessary all pertinent lay and medical treatment and examination evidence of record including, but not limited to: (a.) the Veteran's December 2018 hearing testimony; (b.) the December 2018 statement by Ms. J.K.C., PT; and (c.) the August 2019 VA examination noting use of an assistive device (i.e., walker) due to brachymetatarsia. The examiner is advised that, while the lack of medical evidence in STRs and immediately after military discharge are relevant factors, the mere absence of evidence does not equate to unfavorable evidence. The Veteran's lay statements and reports of onset and symptomology must be considered and discussed. A complete and thorough rationale for all opinions expressed, with references to pertinent evidence of record, must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.