Citation Nr: 21070594 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 11-07 654 DATE: November 24, 2021 REMANDED Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to a disability rating in excess of 20 percent for the period from August 16, 2011 to April 24, 2017 for a right foot disability rated as "right foot condition, to include pes planus associated with bilateral foot eczema with calluses" is remanded. Entitlement to a disability rating in excess of 20 percent for the period from August 16, 2011 to April 24, 2017 for a left foot disability rated as "left foot condition, to include pes planus associated with bilateral foot eczema with calluses" is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND In August 2011 the Veteran filed a claim for an increased rating for bilateral foot eczema with calluses. In the course of adjudicating and developing the claim, to include a remand by the Board of Veterans' Appeals (Board) in February 2016, the Department of Veterans Affairs (VA) construed the Veteran's increased rating claim to encompass a claim for service connection for a bilateral foot disability secondary to the calluses themselves that manifested as pain resulting from prolonged standing or walking and causing a functional impact. Accordingly, in a December 2016 rating decision the Veteran was granted service connection for a bilateral foot disability secondary to his bilateral calluses, rated as separate right and left foot disabilities. These disabilities were then characterized as "[right/left] foot condition associated with calluses feet, bilateral." In October 2017 the Board found that the Veteran had timely and effectively appealed the December 2016 rating decision as to this secondary disability and took jurisdiction over a claim for increased ratings for separate right and left foot disabilities secondary to the Veteran's bilateral calluses; the Board denied that claim. In October 2018 the Court of Appeals for Veterans Claims (CAVC) vacated the October 2017 Board decision as to, in pertinent part, the right and left foot disabilities secondary to bilateral calluses and remanded those issues, inter alia, to the Board for additional development consistent with the terms of a Joint Motion for Partial Remand (JMPR) agreed to by the Veteran and VA. In November 2019 the Board remanded the Veteran's right and left foot disability claim for development consistent with the October 2018 CAVC order. During the pendency of the appeal discussed above, the Veteran made numerous other filings relating to his feet and claimed disabilities thereof. Following adjudication of these claims, in January 2021 the agency of original jurisdiction (AOJ) issued a rating decision changing the characterization and rating of the Veteran's right and left foot disabilities. Effective April 25, 2017, the Veteran's right and left foot disabilities would be characterized as "bilateral foot disability manifested by degenerative arthritis, pes planus, plantar fasciitis, and hallux valgus" and assigned a single disability rating of 50 percent. The Veteran's separate right and left foot disability ratings for the period prior to April 25, 2017 were retroactively recharacterized as "[right/left] foot condition, to include pes planus (also claimed as foot pain and swelling of both feet) associated with bilateral foot eczema with calluses." The newly characterized rating for the period prior to April 25, 2017 encompassed a noncompensable rating for pes planus. The Veteran's combined bilateral foot disability is rated under diagnostic code 5276 ("flatfoot, acquired"). A 50 percent rating is the highest available rating under diagnostic code 5276, and encompasses symptoms of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a. There is no higher rating available under any diagnostic code applicable to the feet. 38 C.F.R. § 4.25, 4.71a. Accordingly, the Board finds the Veteran's appeal relating to his feet as to the period from April 25, 2017 onward to be rendered moot by the effect of the January 2021 rating decision. In so finding, the Board has determined that the possibility of an extra-schedular evaluation has not been raised by the record. However, currently, two separate 20 percent disability ratings are in effect for the period from August 16, 2011 to April 24, 2017 for right and left foot disabilities characterized as "[right/left] foot condition, to include pes planus (also claimed as foot pain and swelling of both feet) associated with bilateral foot eczema with calluses." As the highest possible rating has not been assigned for the period prior to April 25, 2017, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to service connection for diabetes mellitus, type II; entitlement to separate disability ratings in excess of 20 percent for the period from August 16, 2011 to April 24, 2017 for separately rated right and left foot disabilities rated as [right/left] foot condition, to include pes planus associated with bilateral foot eczema with calluses; entitlement to a total disability rating based on individual unemployability (TDIU); and entitlement to special monthly compensation (SMC) are remanded. In November 2019 the Board remanded the Veteran's diabetes, bilateral feet, TDIU, and SMC claims for development consistent with the terms of an October 2018 CAVC order implementing the terms of a JMPR by the Veteran and VA. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board finds that there has not been substantial compliance with its November 2019 remand directives. The Board directed that VA treatment records for the period from April 4, 2000 to February 18, 2014 and from October 4, 2019, be obtained and associated with the claims file. The Board directed that if such records were found to be unavailable, documentation to that effect should be added to the claims folder. In December 2019, the AOJ informed the Veteran that they had attempted to obtain past VA treatment records, but had received the following response: "VAMC Treatment records prior to October 23, 2003 do not exist. Records show a registration at [facility] [in March 2000] but no treatment was received." 12/12/2019, Correspondence, p. 1. The AOJ stated that they had determined that further attempts to obtain records would be futile. The AOJ also stated that the claims file contained documentation of the written and telephonic efforts made to obtain the Veteran's VA treatment records. Id. As an initial matter, the Board finds that no documentation of written and telephonic efforts made to obtain the outstanding VA treatment records identified by the Board in its November 2019 remand have been associated with the claims file. Further, the record does not reflect any VA treatment records obtained by the AOJ pertinent to the April 4, 2000 to February 18, 2014 time period identified by the Board. The Board acknowledges correspondence from the Veteran, through his attorney, received by VA in October 2019, accompanying submission of material identified as "outstanding treatment records from Dallas VA Medical Center." 10/25/2019, Third Party Correspondence, p. 1. Purported submission of this material by the Veteran in October 2019 does not relieve the AOJ of its obligation to comply with the Board's November 2019 remand directives. Further, the Board finds that a November 2020 VA medical examination and opinion obtained in relation to the Veteran's diabetes claim is inadequate and non-responsive to the Board's November 2019 remand directives. In November 2019 the Board directed that a VA examination be obtained to address the following question relating to the Veteran's diabetes: "Is diabetes mellitus, type II, at least as likely as not (a 50 percent or more probability) caused by disabilities of the feet, knees, and lumbar spine, to include consideration of any physical inactivity, weight gain, and insulin resistance resulting from such disabilities." In November 2020 a VA examiner responded in the negative to that question, and in support stated as follows: "There is no indication in the provider notes in the C-file that weight gain due to these conditions has led to insulin resistance and the subsequent development of Diabetes Mellitus." The Board finds this response to be ambiguous, inadequate, and nonresponsive to its November 2019 remand directives. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (U.S. 2007). It is unclear whether the November 2020 VA examiner intended to state that no treating provider has concluded that a causal nexus exists between the Veteran's diabetes mellitus, type II and his feet, knees, and lumbar spine disabilities; or whether the examiner was simply stating that their own independent conclusion was based on the evidence contained in the claims file. If the former, then the examination is inadequate as it is the examiner's independent medical judgment which is sought, not a mere recitation of the opinions of treating providers already in evidence. If the latter, then the examination is inadequate as the purported rationale simply amounts to a blanket statement that the examiner's conclusion is based on the evidence of record, rather than a fully articulated rationale explaining the application of medical expertise to the evidence of record. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board concludes that the November 2020 VA medical opinion is inadequate, and thus does not represent substantial compliance with the Board's November 2019 remand directives. Further, the November 2020 VA examination was obtained without the benefit of the outstanding VA treatment records discussed above. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The Board has concluded that the AOJ has not yet satisfied its obligation regarding obtaining the outstanding VA treatment records. In light of the foregoing, the Board finds that there has not been substantial compliance with the Board's November 2019 remand directives and a remand of the Veterans' claims is required. The Board also notes, as it did in November 2019, that because evidence developed in the course of adjudicating the Veteran's diabetes and bilateral feet claims could significantly impact a decision on the issue of entitlement to SMC and TDIU, the issues are inextricably intertwined and thus a decision on such claims will be deferred. The matters are REMANDED for the following action: 1. Request and associate with the claims folder VA treatment records for the period from April 4, 2000 to February 18, 2014; and, from October 4, 2019. All attempts to obtain these records should be documented, and such documentation associated with the claims file. If records are unavailable, documentation to that effect should be added to the claims folder. 2. Following the completion of remand directive 1, forward the claims file, including this remand, to the examiner who provided the November 2020 opinion as to the Veteran's diabetes mellitus, type II. If the November 2020 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should opine as to the following: (a.) Is diabetes mellitus, type II, at least as likely as not (a 50 percent or more probability) caused by disabilities of the feet, knees, and lumbar spine, to include consideration of any physical inactivity, weight gain, and insulin resistance resulting from such disabilities. (Continued on the next page) A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.