Citation Nr: 21070840 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-45 267 DATE: November 26, 2021 REMANDED Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to June 1978. Initially, the Veteran sought service connection for a left foot condition only, which was denied in a September 2007 rating decision issued by a Department of Veteran Affairs (VA) Regional Office (RO). When this matter was initially before the Board of Veterans Appeals (Board) in August 2015, the Board: (1) denied service connection for a left foot condition, finding the Veteran did not have a current left foot disability, and (2) found that a claim for service connection for a right foot condition had been raised by the record and must be first adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran appealed this Board decision to the United States Court of Appeals for Veteran's Claims (Court). In April 2017 the Court affirmed the Board's August 2015 decision. Meanwhile, in September 2016, the RO issued a rating decision that denied service connection for both a left foot condition and a right foot condition. The Veteran appealed. In July 2019, the Board issued a decision that found new and material evidence had been received to re-open the claim of service connection for a left foot condition and remanded that claim for a VA examination; and denied service connection for a right foot condition. The Veteran then appealed this Board decision to the Court. In August 2020, the Veteran's representative and the VA General Counsel filed a joint motion for partial remand (JMPR), seeking to vacate only that part of the Board July 2019 decision that denied service connection for a right foot condition. The parties agreed that the Board erred when it indicated the Veteran's service treatment records did not contain complaints or treatments for right foot pain or injury, noting a service treatment record that reflects the Veteran had a cut on his right foot in service. The Court granted the JMPR in August 2020, vacating that part of the Board's July 2019 decision that denied service connection for a right foot condition. In May 2021, the Board remanded both issues for further development, to include obtaining VA examinations of both the left and right foot conditions. VA examinations were obtained in June 2021. The matter has now been returned to the Board for appellate review. 1. Entitlement to service connection for a left foot condition is remanded. 2. Entitlement to service connection for a right foot condition is remanded. The Board regrets any further delay in this matter but finds that additional development is required before the Board can review the Veteran's claim. In the May 2021 remand, the Board gave specific instructions that included ensuring that the Veteran's complete STRs are associated with the claims file and documenting whether the Veteran's records are complete and/or issue a formal finding of unavailability for any identified outstanding record; and requiring the VA examiner to consider and discuss the Veteran's lay statements about his in-service incurrence of a foot disability, to include wearing ill-fitting boots. First, the AOJ did not document whether the Veteran's service treatment records are complete or issue a formal finding of unavailability for any identified outstanding record. As was previously noted in the prior Remand, the Veteran had asserted that the STRs were incomplete, and an additional attempt was to be made to ensure that all STRs were associated with the claims file. It is not clear from the record that this was accomplished, or even attempted. Second, new VA examinations were obtained in June 2021. As it relates to the Veteran's lay statements, the examiner stated: "The Veteran's lay statement about his in-service incurrence, to include wearing ill-fitting boots is not supported by the objective evidence." No rationale or additional detail was provided. However, the Board notes that, to the contrary, there is objective evidence that supports the Veteran's lay statement in the form of an August 1976 service treatment record that reflects a complaint of "tight boots making a blister." A remand by the Board confers on the claimant a legal right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). A failure by the Board to ensure that its remand orders are complied with constitutes legal error. Id. As such, the Board finds that there was not substantial compliance with the May 2021 remand and will once again remand this claim. Lastly, in addition to non-compliance with the Board's previous Remand, the Board also notes that the Veteran has had a diagnosis of "chronic right foot drop" that is noted in several treatment records; this diagnosis was not addressed in the June 2021 VA examination. The matters are REMANDED for the following action: 1. Take appropriate steps to ensure that the Veteran's complete service treatment records (STRs) are associated with the claims file. Document in a memorandum whether the Veteran's records are complete; if they are found to be incomplete, issue a formal finding of unavailability for any identified outstanding record. 2. Request a medical opinion addressing the etiology of the Veteran's right and left foot condition. The examiner is asked to opine whether it is at least as likely as not that the Veteran's diagnoses of bilateral pes planus, plantar fasciitis, or hammertoes, or his diagnosis of chronic right foot drop, are related to his service, to include wearing ill-fitting boots or any of the Veteran's in-service treatment for his left or right foot, to include blisters resulting from his tight boots and a cut to the right foot. Whether a new examination is necessary to provide the requested opinions, is left to the examiner's discretion. For each requested medical opinion, the examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide any requested opinion without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the examiner must identify the additional information needed. The examiner is advised that the Veteran's lay statement about his in-service incurrence, to include a cut to the right foot and wearing ill-fitting boots, developing blisters as a result, must be considered, and discussed. Denial of service connection for a disability cannot be solely based on the lack of complaints, diagnosis, or treatment of a disability during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303(d). If the lay statements are inconsistent with the medical evidence, with medical principles concerning his diagnosed foot disabilities, or if there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a reasoned explanation citing the medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence or medical principles. A thorough rationale must be provided for all opinions expressed. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jiggetts, Tenisha 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.