Citation Nr: 21068959 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-04 495 DATE: November 17, 2021 REMANDED Entitlement to service connection for a left foot disorder, including secondary to service-connected total knee replacement left knee, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1955 to July 1958. Regrettably, the Veteran died in September 2018. The appellant has been recognized as a properly substituted claimant. See 38 U.S.C. § 5121A; see also February 2019 VA letter (indicating the appellant has been substituted for the Veteran in the present appeal). In May 2019, the appellant filed a claim for dependency and indemnity compensation (DIC), survivor's pension, and burial benefits. In an August 2019 administrative decision, the Regional Office (RO) partially granted the appellant's claim for burial benefits. In a separate August 2019 administrative decision, the RO denied the appellant's claim for DIC benefits and survivor's pension benefits on the basis that the appellant had not submitted a copy of the Veteran's death certificate (despite the fact that the Veteran's claims file reflects that a copy of that certificate was submitted earlier that month). Many of the appellant's written statements appear to be arguing for DIC benefits rather than for the issue before the Board. Because the RO has issued a decision on this issue, the Board is not able to refer it to the RO for processing. That said, the appellant is encouraged to contact her representative for further information about refiling her claim for DIC benefits With respect to the instant appeal, the appellant testified during an April 2021 virtual hearing. A transcript of this proceeding has been associated with the record. Later that same month, the Board remanded this appeal for additional development which has since been completed, to include the procurement of a VA nexus opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this respect, a series of nexus opinions were obtained in September 2021. However, these opinions collectively disregard testimony that the Veteran's symptoms onset during service and fail to address all theories of entitlement as presented by the record. Thus, an adequate addendum opinion is required. Additionally, the appellant identified private treatment in October 2021 which may be relevant to the pending appeal. On remand, reasonable efforts to obtain related treatment records are necessary. The matter is REMANDED for the following actions: 1. Request that the appellant provide authorization for release of private treatment records from Dr. R. C. (as identified in her October 2021 communication) to VA. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile. If private records are identified, but not obtained, the RO must notify the appellant of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. If possible, the appellant should attempt to obtain the records herself. 2. Obtain an addendum opinion addressing the questions below. The examiner is advised that the Veteran died in September 2018 and is therefore unavailable for examination. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions as to: (A.) Identify ALL left foot disorders shown by the Veteran during the period on appeal. Specifically, indicate whether he showed pes planus and/or hammertoes, as contended by the appellant. In doing so, the examiner must address the appellant's testimony that the Veteran's symptoms (specifically, swelling) onset prior to his diabetes diagnosis. (B.) For each disorder, opine whether it is clear and unmistakable (obvious and manifest) that the condition existed prior to service. Here, the examiner must address an August 1956 service treatment record containing reports of preexisting flat feet; (I) If so, opine whether it is clear and unmistakable (obvious and manifest) that the preexisting disability was not aggravated by service. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? (II) If not, address whether: (a) It is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including: (1) in-service left knee and ankle injuries with prolonged symptomatology; and (2) post-service hammertoe surgery, after which the Veteran's body "rejected" the pins and triggered foot swelling; (b) it is at least as likely as not that the disorder was caused or aggravated by the Veteran's service-connected left knee disability or the treatment thereof, including surgery? In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A finding of "aggravation" does not require a permanent worsening of the disorder; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.