Citation Nr: 21068844 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 14-14 607 DATE: November 15, 2021 REMANDED Entitlement to service connection for a bilateral foot disorder other than service-connected bilateral pes planus, foot strain and residuals of cold injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1976 to February 1986, and from August 1988 to March 1999. This matter was initially before the Board in January 2021, where it was remanded for additional development. Specifically, the Board determined that a VA medical opinion was warranted regarding the nature and etiology of any diagnosed foot condition other than pes planus. Entitlement to service connection for a bilateral foot disorder other than service-connected bilateral pes planus, foot strain and residuals of cold injury is remanded. While the Board regrets further delay, the matter must be remanded as there has not been substantial compliance with the Board directive. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). In a February 2021 VA opinion, the examiner opined that, while prior x-rays noted mild hallux valgus on x-ray, "there is no diagnoses on the disability reports to correlate this." In a June 2021 VA opinion, the examiner stated that "[b]ased on the current exam, there is no objective evidence to diagnose any other foot condition, other than the already SC pes planus, therefore, an opinion is not rendered." The AOJ sought clarification regarding the hallux valgus specifically inquiring "[a]lthough the examiner has indicated theses issues are no longer present, how does the examiner explain the prior radiology reports which would indicate this would not be a resolved condition?" In a July 2021 VA opinion, the examiner states that "[a]lthough the 2006 imaging results noted mild bilateral hallux valgus, later imaging results from 2011, 2017, and 2020 do not indicate bilateral hallux valgus. There was no hallux valgus noticed on the exam dated 3/19/21. Veteran did not make mention of any treatment." The Board finds that the July 2021 addendum is inadequate for adjudicative purpose. The Board also notes that the presence of a disability at any time during the claim process, or relatively close thereto, can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Notably, an October 2020 VA x-ray was interpreted as showing right hallux valgus and synostosis of the mid phalanges of the right 5th digit. Therefore, the Board finds that a new examination is warranted for further clarification as the examiner did not medically explain the question posed by the AOJ. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Forward the Veteran's claims file to a qualified examiner for an opinion of any diagnosed foot condition other than pes planus. The claims file should be reviewed in conjunction with the examination. Following review of the claims file, the examiner should address the following: a) Clarify whether the Veteran has a diagnosis of hallux valgus. If he does not have hallux valgus, the examiner must use medical principles to explain why including whether the 2006 imaging interpretation and/or the October 2020 imaging noting right "[h]allux valgus" is a misdiagnosis, or whether the condition self-resolved. b) Whether the Veteran's prior diagnosis of plantar fasciitis in the clinic setting is a separate disorder from service-connected "foot strain" and, if so, the examiner should opine the following: Is it at least as likely as not (i.e., a 50 percent or greater possibility) that hallux valgus (if deemed a correct diagnosis even if currently asymptomatic) or plantar fasciitis (if deemed a separate disorder from foot "strain") or synostosis of the mid phalanges of the right 5th digit (see October 2020 VA radiology report) had its onset during active duty, or is otherwise etiologically related to his active duty service? Is it at least as likely as not that that hallux valgus (if deemed a correct diagnosis) or plantar fasciitis (if deemed a separate disorder from foot "strain") or synostosis of the mid phalanges of the right 5th digit (see October 2020 VA radiology report) is (1) caused by his service-connected bilateral foot disabilities, or (2) aggravated by his service-connected bilateral foot disabilities (e.g., a worsening of foot symptoms beyond those expected by the baseline level of disability, even if temporary). In answering these questions, the examiner should address the following: Service treatment records (STR) indicating treatment for athlete's foot, frostbite, and corns (see, e.g., May 1979, January 1980, April 1981, October 1985, and June 1990 service treatment records); A June 1999 VA examination indicated ossification in the right foot; A July 2005 VA clinic record reflecting a diagnosis of plantar fasciitis; May 2006 imaging reflecting mild bilateral hallux valgus; July 2017 VA examination reflecting no hallux valgus; an October 2020 VA x-ray interpreted as showing right hallux valgus and synostosis of the mid phalanges of the right 5th digit; and February 2021 VA opinion, stating that the Veteran's bilateral foot strain is linked to overuse of the foot and the muscles becoming strained and painful, not due to pes planus. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.