Citation Nr: 21069381 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-20 672 DATE: November 18, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for tinnitus is remanded. INTRODUCTION The Veteran served on active duty from July 1975 to August 1976. In March 2020, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in May 2020 and June 2021, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Although most unfortunate and frustrating, the Board finds additional development remains necessary prior to final adjudication of the issue on appeal. As previously noted, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of both the May 2020 and June 2021 remands, the Board expressly indicated a VA medical opinion by an Otolaryngologist was required prior to final adjudication of the Veteran's claim for tinnitus. However, the RO again failed to achieve substantial compliance with that instruction as a VA examination and medical opinion obtained in June 2021 was performed by an Audiologist rather than an Otolaryngologist as directed. In the June 2021 remand the Board also instructed the RO that in order to be considered adequate medical examination reports must contain clear conclusions with supporting data, a reasoned medical explanation connecting the two, be based on accurate factual premises, and cannot wholly ignore a veteran's statements related to lay observable symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The RO obtained VA foot and back examinations in July 2021. Following those examinations, the nurse practitioner found the Veteran's claimed bilateral foot and back disabilities were less likely than not incurred in service. The examiner also found the Veteran's back disability was less likely than not caused or aggravated by his bilateral foot disabilities. For several reasons these opinions are gravely insufficient, and essentially duplicative of the prior opinions the Board found to be insufficient. First, the July 2021 examiner again appears to have chiefly relied on a lack of treatment in service. Additionally, the examiner expressly found "no evidence in the medical records" indicating the Veteran had treatment for his feet in service. It appears this examiner also ignored the Board's prior observations that the Veteran's feet, though noted on entrance, were found to be totally asymptomatic at that time. Additionally, his records show he was indeed treated for his feet in service in August 1975, and the Veteran has competently reported experiencing his first foot problems at that time. Further, the examiner found no support for the Veteran's secondary theory of entitlement for his lumbar spine disability; however, like the prior examiner utterly ignored the report provided by the Veteran's treating physician at the Oklahoma Foot and Ankle Associates, which indicates the Veteran's severe pes valgo planus deformities have caused foot pain and subsequent right side sciatic and lower lumbar pathology with a herniated disc. The treating physician has intimated this may have resulted from an outoed gait. Based on the foregoing deficiencies, which were nearly identical to deficiencies noted in the prior July 2020 medical opinions, the Board finds new examinations and medical opinions must be obtained from a Podiatrist and Orthopedic Specialist. Accordingly, this case is REMANDED for the following actions: 1. Afford the Veteran VA foot and back examinations by a Podiatrist and Orthopedic Specialist respectively with sufficient expertise, who have not previously examined the Veteran, to address the etiology of the Veteran's claimed bilateral foot and lumbar spine disabilities. All pertinent evidence of record must be made available to and reviewed by the examiners. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the appropriate examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) any of the Veteran's current bilateral foot disabilities, to include pes planus, ligament laxity, tibialis tendinitis, tenosynovitis, calcaneal spurs, and hallux valgus originated during his period of active service or were worsened during his period of active service, to include as a result of the Veteran's reported extensive road marches or treatment for os calcis therein. The appropriate examiner should also state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability: a) originated during his periods of active service or is otherwise etiologically related to his active service; b) was caused by his bilateral foot disabilities; or c) was worsened to any degree by his bilateral foot disabilities. The examiners must provide a complete rationale for all proffered opinions. The examiners must discuss and consider the Veteran's competent lay statements, to specifically include his reports of first experiencing foot pain in service following numerous lengthy road marches. The appropriate examiner must also consider and expressly discuss the Veteran's July 1975 entrance examination, wherein the physician examining the Veteran found no evidence of a current disability, as well as the August 1975 treatment note, in which the Veteran was treated for os calcis. The appropriate examiner is also asked to specifically consider and expressly discuss the statement provided by the Veteran's private physician at the Oklahoma Foot and Ankle Associates, which indicates the Veteran's severe pes valgo planus deformities have caused foot pain and subsequent right side sciatic and lower lumbar pathology with a herniated disc. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Also, obtain a VA examination and medical opinion from a VA Otolaryngologist with sufficient experience and expertise to provide an opinion as to the etiology of the Veteran's tinnitus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. In this regard, the physician must state whether any degree of the Veteran's tinnitus at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to specifically include his conceded military noise exposure. The examiner must provide a complete rationale for all proffered opinions. If the physician is unable to provide any required opinion, he or she should explain why. If the physician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the physician should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.