Citation Nr: 21068651 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 13-25 126A DATE: November 12, 2021 REMANDED Entitlement to service connection for right foot disability, to include hallux valgus and residuals of right foot plantar warts, is remanded. Entitlement to service connection for left foot disability, to include hallux valgus and arthritis, is remanded. Entitlement to disability compensation under 38 U.S.C. § 1151 arising from anterior subcutaneous transposition of the ulnar nerve 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 July 1976 to May 1982. In September 2017 and April 2021, the Board remanded the Veteran's claims for further development. In July 2021, the Agency of Original Jurisdiction granted service connection for bilateral pes planus. Neither the Veteran nor his representative has expressed that this satisfied his appeal with regard to his foot claims. Therefore, the Board will continue to adjudicate the Veteran's claims. 1. Entitlement to service connection for right foot disability, to include hallux valgus and residuals of right foot plantar warts, is remanded. 2. Entitlement to service connection for left foot disability, to include hallux valgus and arthritis, is remanded. Upon review of the evidence of record, the Board finds remand is warranted for additional medical opinions. As discussed in the Board's April 2021 remand, a September 2019 VA examiner opined the Veteran's hallux valgus has persisted since service in 1984 and led to arthritis, but the examiner was mistaken as the January 1984 treatment record relied upon post-dates service. The Board sought an additional opinion, which was provided in June 2021, with a clarifying addendum opinion provided in July 2021. The examiner provided a positive nexus opinion for pes planus, noting it was diagnosed after service in 1984, but that it is not an acute condition. The examiner also provided a negative nexus opinion for arthritis and residuals of plantar wart removal. However, these new opinions did not address the Veteran's bilateral hallux valgus. This is of particular concern given the Board's April 2021 remand and the September 2019 examiner's opinion regarding the relationship between hallux valgus and arthritis. See DeLisio v. Shinseki, 25 Vet. App. 45, 54-55 (2011) (when a pending claim is for a condition that is caused by a disease or other disability that may be associated with service, and that causal disease or disability is, in fact, related to service, the pending claim reasonably encompasses a claim for benefits for the causal disease or disability). Like pes planus, hallux valgus was diagnosed in January 1984. Given the September 2019 examiner's statement that it persisted, this suggests it is not an acute disability. Moreover, the Veteran complained of bunions on his right foot in service. See January 30, 1982 service treatment record. Hallux valgus is angulation of the great toe away from the midline of the body (toward the other toes) and can be caused by bunions. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (citing Dorland's Illustrated Medical Dictionary 244, 729 (27th ed. 1988); see also 68 Fed. Reg. 7020 (February 11, 2003) (noting consultants suggested the addition of ''with or without bunion deformity'' to the title of the diagnostic code associated with hallux valgus). In light of the above, remand is warranted for additional medical opinions. 3. Entitlement to disability compensation under 38 U.S.C. § 1151 arising from anterior subcutaneous transposition of the ulnar nerve is remanded. Upon review of the evidence of record, the Board finds remand is warranted for additional medical opinions. The Board remanded this claim in April 2021, because the September 2019 "examiner did not specifically address whether the Veteran had developed any chronic residuals as a result of his ulnar nerve surgery." The Board sought such an opinion, and the examiner was directed to identify the etiology of the Veteran's left-hand diagnoses, including Boutonniere deformity, mild flexion deformity of the 5th digit, and degenerative arthritis. Additional opinions were obtained in June 2021, but the examiner did not identify the etiology of the Veteran's left-hand diagnoses. However, the examiner opined it was less likely than not the Veteran suffered chronic additional disability as a result of his April 2014 surgery. In support of this the examiner noted these diagnoses are not known complications of the procedure and that the Veteran's ulnar nerve procedure was to his left elbow "and anatomically not possible to damage the hand." See June 2021 VA opinion reports. Unfortunately, this rationale appears to conflict with the evidence of record, and implies that even if the ulnar nerve was severed during surgery it would not "damage the hand." Notably, the procedure was performed in order to provide relief to the Veteran's hand. See April 16, 2014 VA treatment record (informed consent document: "Benefits may include decreased pain, weakness and dysesthesia (impairment of sensation) into hand."). Furthermore, in April 2015, Dr. M.I-M. opined the Veteran's left-hand pain and contracture is more likely than not related to the Veteran's left arm operation. See April 13, 2015 private medical statement (does not address other requirements of 38 U.S.C. § 1151); see also June 26, 2014 VA treatment record (Veteran reports not having flexion contracture prior to ulnar nerve surgery). Although there is no reasons-or-bases requirement imposed on examiners, examiners must support their conclusions with an analysis that the Board can consider and weigh against contrary opinions. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, there is insufficient analysis for the Board to rely on the examiner's opinion. Moreover, the examiner's statement that the Veteran's diagnoses are not known complications of the procedure, raises the possibility that if these are in fact the result of his surgery, then such complications were not reasonably foreseeable. See 38 C.F.R. § 3.361 ("The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided."). In light of the above, remand is warranted to obtain additional medical opinions. Additionally, remand is warranted to obtain private medical records, including those in VA's custody. In Dr. M.-I-M.'s April 2015 statement, the doctor wrote the Veteran established care in September 2014 and was referred to a "Hand Ortho", whom he saw on October 9, 2014. Notably, April 2016 VA treatment records note the medical records from the October 2014 orthopedic consultation, and a November 2014 private treatment record, were sent for scanning and are available in "Vista Imaging". See April 26-27, 2016 VA treatment records. However, these records are not included in the Veteran's claims file. Moreover, a February 2016 VA treatment record notes the Veteran was seen by a hand surgeon in November 2015 and was told he needs to see neurosurgery. See February 23, 2016 VA treatment record ("apparently was seen at the Hand Center . . . These records are not in the VA system."). It is unclear from this record if the Veteran saw a hand surgeon at VA or privately. Nevertheless, VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency, including private records received by VA. 38 C.F.R. § 3.159(c)(2). Therefore, remand is warranted to obtain medical records outstanding. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entilement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private providers of treatment or care, including but not limited to Dr. M.I-M., the hand orthopedist seen in October 2014, and the hand surgeon seen in November 2015. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding treatment records in VA's custody, including private treatment records from October and November 2014, and associated them with the Veteran's claim's file. 3. Obtain addendum opinions from the September 2019 examiner, or other appropriate medical professional regarding the Veteran's claimed feet disabilities. The examiner must review the claims file. The examiner is asked to provide a response to the following: a) Is the Veteran's left foot hallux valgus at least as likely as not related to service? b) Is the Veteran's left foot hallux valgus at least as likely as not proximately due to service-connected disease or injury, to include pes planus? c) Is the Veteran's left foot hallux valgus at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disease or injury, to include pes planus? d) Is the Veteran's right foot hallux valgus at least as likely as not related to service? e) Is the Veteran's right foot hallux valgus at least as likely as not proximately due to service-connected disease or injury, to include pes planus? f) Is the Veteran's right foot hallux valgus at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disease or injury, to include pes planus? Provide a rationale to support the opinions. In doing so, the examiner must address the Veteran's in-service report of bunions and the January 1984 finding of hallux valgus. If the examiner determines and interview or examination of the Veteran would be beneficial in providing the requested responses, such an examination should be scheduled. 4. Schedule the Veteran for a VA examination for her 38 U.S.C. § 1151 claim. The examiner must review the claims file, including this remand. The examiner must review the claims file. The examiner must interview the Veteran and solicit any additional disabilities he believes were caused by his April 2014 surgery, even if these disabilities have since resolved. In doing so, the examiner should solicit complications, sequela, symptoms, etc., the Veteran believes are due to VA surgery. The examiner is asked to provide a response to the following: a) Identify and list each disability the Veteran has alleged in the record or during the examiner's interview. b) For each alleged disability, the examiner must opine whether it is at least as likely as not the disability was caused by VA surgical treatment? c) Are there additional disabilities that have not been alleged by the Veteran, but have been identified by the examiner through examination of the Veteran and the record, that are at least as likely as not caused by the Veteran's April 2014 surgery? d) For each disability the examiner identifies as at least as likely as not caused by VA surgery: is it at least as likely as not the proximate cause of the disability was a) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment and care; or b) an event not reasonably foreseeable? Provide rationale for opinions given. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.