Citation Nr: 21070202 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 15-19 646 DATE: November 23, 2021 REMANDED Entitlement to service connection for a left foot disability, originally claimed as a broken bone right foot (stress fracture) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in December 2018 instructing the RO to obtain outstanding records, as well as a VA examination. In May 2021, the matter was remanded again for failure to fully comply with the December 2018 Board remand. The Veteran was provided a VA examination in October 2019. However, the Veteran's VA medical records from a Redding VA Outpatient Clinic between August 2013 to October 2016 were not obtained. The matter was also remanded to make a second attempt to obtain records from the Veteran's former employer concerning his employment and disability history. The above records have been associated with the Veteran's file. Although the Board regrets an additional delay, a remand is again necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 As an initial matter, the Board finds that a remand is necessary to provide the Veteran with an addendum opinion, or if deemed necessary by the VA examiner, a new VA examination. VA medical records show the Veteran had a diagnosis of arthritis as early as November 2014. In a November 2016, Statement in Support of his Claim (SSC), the Veteran stated that he now has a diagnosis of arthritis, which he believes is due to his "long-standing military injury." A October 2019 VA examination diagnosed the Veteran with degenerative arthritis. Given the Veteran's contentions regarding arthritis, the November 2014 diagnosis of arthritis, and the 2019 VA examiner's degenerative arthritis diagnosis, the Board finds that a remand is necessary in order to obtain an opinion to determine the nature and etiology of his arthritis. Returning to the Veteran's 2016 SSC, the Veteran contends that in 2015, his foot began hurting. The Veteran stated that he began to walk with a limp. The Veteran also stated that his foot is weak and that it is painful to walk on. He further stated that the pain is getting worse. The Veteran also stated that he believes his current pain is linked to an injury he suffered while in service. See also June 2015, VA treatment record where the Veteran described "on and off again" left foot pain for "x" number of years. The same June 2015 VA treatment record, contains an examiner's note of "chronic left foot pain." During the October 2019 VA examination, the examiner found that the Veteran's left foot disability was less likely than not aggravated by the Veteran's in-service injury. As a rationale, the examiner stated that the Veteran's "during service condition was acute only." The examiner then went on to state "there is no evidence of chronicity of care," and because of this, "a nexus has not been established." The examiner also stated that "No c-file records prove ongoing, chronic care for a stress fracture condition" rather the records only show a "healing bone on x-ray." Service treatment records from May and June 1969 support the VA examiner's opinion, in that notations show left foot healing. Nevertheless, the examiner's opinion does not consider the Veteran's statements that he has suffered from on-and-off foot pain. It also does not address VA treatment records from June 2015, showing chronic foot pain. Because the opinion does not consider the Veteran's lay statements, remand is necessary. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board acknowledges that it is remanding the case in part due to the Veteran's lay statements. It also acknowledges that there is little medical evidence that confirms or denies the Veteran's assertions. In November 2016 SSC, the Veteran explained that from April 1971 to April 1981 he worked for the railroads. His work required that he travel all over the Midwest and South. During those 10 years, the Veteran stated that he saw various doctors, but given how often he moved he does not have those records. He also says he has no way to remember when and who treated him, The Veteran also stated that he worked in Oakland, California from 1981 to 1991, where again he saw doctors, He again stated he cannot recall their names. While medical records during the time of the Veteran's employment with the railroad would be helpful, they are required to remand the case. After all, the Veteran is competent to discuss the worsening of his leg pain. As a layperson, he is qualified to report observable symptoms and medical events concerning his left leg pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377. In August 2015, 44 years after the Veteran's discharge, the Veteran experienced lower left leg pain after stepping over a log several days before he began experiencing the reported leg pain. The Veteran stated that his leg began feeling better after a few days but that the pain was worse at night. The Veteran also complained about a blood clot. Finally, it is important to note that US Railroad Retirement Board records show that the Veteran has been receiving a "Disability Annuity" since January 2010. The same records show that the Veteran was "rated totally and permanently disabled from all work effective July 2009." The current evidence in the Board's receipt does not explain why the Veteran is receiving an annuity, or why he was rated totally and permanently disabled. This matter is REMANDED for the following action: 1. Ask the Veteran to provide additional clarification, on the correct VA form as he is receiving a "disability Annuity" from the railroad and was why he was rated as totally and permanently disabled. 2. Forward the record to an appropriate medical professional to render an etiological opinion as to the Veteran's left leg disability. Whether the examiner provides an addendum medical opinion, or a new VA examination is left to the discretion of the clinician selected to write the opinion. After reviewing the record, please address the below inquiries: A. Identify all diagnoses referable to the Veteran's left leg disability. B. The examiner is asked to opine whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's degenerative arthritis is directly related to his in-service left foot stress fracture. The examiner must consider the Veteran's statements that his arthritis is related to his in-service left foot stress fracture. C. The examiner is asked to opine whether it is at least as likely (i.e., 50 percent probability or greater) that the Veteran's "on and off again foot pain" is directly related to his in-service left foot stress fracture. The examiner must consider the Veteran's statements that his foot pain is related to his in-service injury, or any superseding cause, or the natural process of aging. D. A detailed explanation (rationale) is required for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay the processing of the claim and may also result in a clarification being requested. 3. The AOJ should then review the record and re-adjudicate the claim. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case and allow the Veteran and his representative to respond. The case should then be returned to the Board, if in order, for further review. (Continued on the next page) 4. The Veteran has the right to submit additional evidence and argument on the remanded matter. As a remand, this matter must be handled expeditiously. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mintz, Allison 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.