Citation Nr: 21070679 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-40 537 DATE: November 24, 2021 REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded REASONS FOR REMAND The Veteran served on active duty from May 1969 to November 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from May and July 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional office (RO). The Board denied the instant claims in a November 2018 decision. The Veteran subsequently appealed the denials to the Court of Appeals for Veterans Claims (Court). In a May 2020 Memorandum Decision, the Court vacated the Board's denials as to the claims for service connection for degenerative disc disease of the cervical spine, a bilateral foot condition and a chin scar and remanded the matters to the Board for additional development. The matters were last remanded in November 2020 for further development. Specifically, the RO was instructed to identify and associate any outstanding medical treatment records, to obtain VA addendum opinions with regards to the current feet and cervical spine disabilities, along with providing the Veteran with a new chin scar VA examination. A February 2021 rating decision granted the Veteran's claim for service connection for a chin scar as well as right foot osteoarthritis and assigned an initial rating for each disability. As this decision represents a full grant of the benefits sought with respect to these claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Entitlement to service connection for a left foot disorder is remanded. The Veteran asserts that his left foot disorder is due to service, specifically an in-service stress fracture and/or fall from a tower. Service treatment records reflect complaints of a stress fracture to the right foot in June 1969. However, the service treatment records are negative for complaints, treatments or diagnoses related to a left foot disorder. The November 1970 report of medical examination shows a normal clinical evaluation, and the corresponding report of medical history does not show any concerns with regards to the foot. A January 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's foot disorder was incurred in or caused by the claimed in-service injury, event or illness as there was no chronic diagnosis made for the bilateral feet and that symptoms related to the left foot were subjective only and that the Veteran was treated for a stress fracture of the second metatarsal of the right foot in June 1969. The examiner reasoned that a review of the post-service treatment records reveals right foot osteoarthritis in 2016, that there were no intervening records for the 46 years between the injury and first documentation and that the physical examination of the left foot is normal. However, the record reflects diagnoses of bilateral metatarsalgia and bilateral degenerative arthritis. Therefore, this opinion appears to be based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). On remand, an addendum opinion should be obtained. Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a cervical spine disorder is remanded. The Veteran claims that his currently diagnosed cervical spine disorder is the result of his service, specifically an in-service fall from a tower. Service treatment records show one complaint of a neck concern. Notably, in June 1970, the Veteran reported to experiencing sore neck, where the Veteran reported to falling from a tower and landing on his chest and neck. He reported to feeling sore on both sides of the neck, with headaches at the back of his head. The Veteran was then told to report back to the office for a sick call if the condition did not improve. The Veteran did return to the office five days later, but it was in association to a different concern than the pain associated with falling from a tower. A January 2021 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's cervical spine disorder was incurred in or caused by the claimed in-service injury, event or illness as the Veteran was seen for a sore neck secondary to a fall from a tower, that the Veteran did not report neck pain for the remainder of his time in service, that a November 1970 discharge examination revealed no medical complaints and that there were no records for the intervening 45 years were identified. However, as noted in the May 2020 Memorandum Decision, VA may not rely on the absence of treatment when deciding a claim without the proper foundation. See Fountain v. McDonald, 27 Vet. App. 258 (2015). On remand, an addendum opinion should be obtained. Stegall v. West, supra; Barr v. Nicholson, supra. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion from an appropriate examiner to determine the nature and etiology of the Veteran's claimed left foot disorder and cervical spine disorder. The need for a physical examination is left to the discretion of the medical professional offering the medical opinion. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should respond to the following: (A) Is it at least as likely as not (50 percent or better probability) that any currently present left foot disorder had its onset during his active service, or is otherwise etiologically related to such service, to include a fall from a tower? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. If the examiner determines that there is no currently diagnosed left foot disorder, he or she should reconcile that finding with the record reflecting diagnoses of bilateral metatarsalgia and bilateral degenerative arthritis. (B) Is it at least as likely as not (50 percent or better probability) that any currently present cervical spine disorder had its onset during his active service, or is otherwise etiologically related to such service, to include a fall from a tower? The examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. (Continued on the next page) A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.J. Kim, Associate 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.