Citation Nr: 21071595 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-39 788 DATE: November 30, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a left foot disability, is remanded. Entitlement to service connection for a psychiatric disability, to include depression and anxiety, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1980 to August 1980. 1. Entitlement to service connection for a left foot disability is remanded. VA has not afforded the Veteran a VA examination to assess the nature and etiology of his claimed left foot disability. To this end, the Board notes that the Veteran has present testimony, and the evidence does show, that he was treated for foot pain in his initial bootcamp training during his active service. A close review of the record reveals that the Veteran was ultimately discharged from service based on this foot disability, which made him physically unqualified for service. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Robinette v. Brown, 8 Vet. App. 69 (1995). In a claim for service connection, evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, as the Veteran claims he still suffers from pain and functional loss due to his left foot disability, and as the Veteran's service treatment record (STRs) show both complaint and treatment for a foot disability, such evidence is sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination for the claimed conditions. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, on remand a VA examination and opinion supported by a thorough medical explanation and rationale should be obtained. Furthermore, the Board acknowledges that the Veteran's STRs and separation documentation note that the Veteran's foot condition preexisted service, and that such was not aggravated by service. The Board finds, however, that as such opinion was provided upon separation, and not entry into service, this finding of a preexisting condition is not sufficient to obfuscate the Veteran's presumption of soundness. As noted in the VA Code, the presumption of soundness does not apply only in a situation in which a disability had been explicitly noted upon entry into service. Here, as the Veteran's entry examination did not note any foot disability, the Veteran's presumption of soundness attaches, and can only be rebutted by a finding of clear and unmistakable evidence. 2. Entitlement to service connection for a left knee disability, to include as secondary to a left foot disability is remanded. 3. Entitlement to service connection for a psychiatric disability, to include depression and anxiety is remanded. During his hearing before the undersigned, the Veteran explicitly noted that both his left knee disability and his psychiatric disability, stem from/are secondary to his left foot disability. As such development in the Veteran's claim for a left foot disability could also affect these claims, the Board finds that the claims are inextricably intertwined. Therefore, a remand is required for these claims. Harris v. Derwinski, 1 Vet. App. 180 (1991).] The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from any private physicians that are not already of record. 3. Then, schedule the Veteran for a VA orthopedic examination for his claimed left foot disability. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide an opinion regarding the nature and etiology of his claimed left foot disability, to include a diagnosis. The examiner is requested to address the following: (a) Opine as to whether it is clear and unmistakable (obvious, manifest, and undebatable) that any left foot disability pre-existed active service; (b) If so, the examiner must state whether it is clear and unmistakable (obvious, manifest, and undebatable) that the pre-existing left foot disability WERE NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress; (c) If not, the examiner must opine as to whether the Veteran's foot disability at least as likely as not (a probability of 50 percent or greater) began in or are related to service. A complete rationale for all opinions reached must be provided, to include explicitly addressing the codes and notations in the Veteran's separation documentation. 4. If the claimed foot disorder is found to be due to or aggravated by service, forward the claims file to an appropriate VA examiner to assess the Veteran's claimed left knee disability. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should state whether it is at least as likely as not that any diagnosed left knee disability is caused and/or aggravated by service-connected left foot disability. Aggravation means an increase in severity beyond the natural progress of the disease. The examiner should provide a complete rationale for any opinions provided. (Continued on the next page) 5. If the claimed foot disorder is found to be due to aggravated by service, forward the claims file to an appropriate VA examiner to assess the Veteran's claimed psychiatric disability. The record, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should state whether it is at least as likely as not that any diagnosed psychiatric disability is caused and/or aggravated by service-connected disabilities. Aggravation means an increase in severity beyond the natural progress of the disease. The examiner should provide a complete rationale for any opinions provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.