Citation Nr: A21017583 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 190726-14320 DATE: November 1, 2021 REMANDED Entitlement to service connection for a lung nodule is remanded. Entitlement to service connection for left foot Achilles tendonitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from November 2009 to December 2018. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In her July 2019 Notice of Disagreement, the Veteran elected the "Direct Review" docket and indicated, "I do not want a Board hearing and will not submit any additional evidence in support of my appeal." See July 2019 VA Form 10182, Notice of Disagreement. The matters were denied by the Board in May 2020. See May 2020 BVA Decision. The Veteran filed a timely notice of appeal (NOA) with the United States Court of Appeals for Veterans Claims (CAVC). In a January 2021 Joint Motion for Remand, the matters were remanded because "the issue of whether Appellant was entitled to a VA medical examination pursuant to McLendon is raised, and the Board erred when it did not discuss this issue." The Veteran dismissed the issues of entitlement to service connection for right foot Achilles tendonitis, neck mass, and sleep apnea. See January 2021 CAVC Decision. The matters are returned to the Board for further consideration. 1. Entitlement to service connection for a lung nodule. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination when there is: 1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; 2) evidence establishing that an event, injury, or disease occurred in-service or establishing that certain diseases manifested during an applicable presumptive period; 3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but 4) insufficient, competent medical evidence is in the record to prevent VA from making a decision on the claim. See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran was provided with a VA General Medical examination in October 2018. A "Respiratory Conditions (other than tuberculosis and sleep apnea)" examination was not indicated during the evaluation. See October 2018 VA General Medical examination report. The record was not sufficient to make a determination on the issue of service connection for a lung nodule, and a remand is required to acquire a VA examination for the pre-decisional duty to assist error. 2. Entitlement to service connection for left foot achilles tendonitis. Pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide a medical examination when there is: 1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; 2) evidence establishing that an event, injury, or disease occurred in-service or establishing that certain diseases manifested during an applicable presumptive period; 3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but 4) insufficient, competent medical evidence is in the record to prevent VA from making a decision on the claim. See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). In X-rays of the Veteran's left foot taken in September 2016, a "[s]mall heel spur and small Achilles enthesophyte" were noted as "stable." See March 2018 Service Office and Clinic Note. A January 2017 MRI of the Veteran's left foot revealed an "unremarkable" Achilles tendon. See January 2017 Service MRI Left Ankle Without Contrast Report. The October 2018 VA Foot Conditions examination did not discuss or acknowledge either the September 2016 X-rays or the January 2017 MRI in the Veteran's service treatment records. See October 2018 VA Foot Conditions examination report. The Veteran did not receive a VA Ankle Conditions examination for the left foot. See October 2018 VA Ankle Conditions examination report ("1A. List the claimed condition(s) that pertain to this DBQ: For the Claimed Compensation Condition of Right Ankle Condition."). The May 2019 VA Foot Conditions examination did not discuss or acknowledge either the September 2016 X-rays or the January 2017 MRI in the Veteran's service treatment records. For the reasons set forth herein, a remand is required to schedule the Veteran for Foot Conditions and Ankle Conditions examinations to address the pre-decisional duty to assist errors. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA medical examination regarding her claimed respiratory condition and obtain an opinion regarding service connection. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: (a) The examiner must elicit from the Veteran, and document in the examination report, a full history regarding the onset and continuity of her symptoms and any treatment; (b) Determine whether the Veteran ever had symptoms or a diagnosis of a respiratory disorder, either before or during the pendency of the claim, reconciling any evidence in the service and treatment records; (c) Address the Veteran's lay statements, noting that the Veteran is competent to attest to matters for which she has first-hand knowledge, including observable symptomatology; (d) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any respiratory condition(s) had its onset in, is aggravated by, or is otherwise related to military service; (e) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any respiratory condition(s) is caused or aggravated by service-connected conditions, to include the medications taken for these disorders: (i) Secondary service connection is warranted for any incremental increase in disability, regardless of permanence, if medically ascertainable; (ii) State whether there was an increase in disability; (iii) Describe any increase in disability in terms of diagnosis, severity, and duration; (iv) The examiner must address both causation, direct and secondary, and aggravation; (f) Provide a specific rationale, supported by data in the record, for any conclusions reached, noting that a VA opinion is considered inadequate when it relies exclusively on the lack of evidence in the service treatment records (STRs) to disassociate a claimed condition from the Veteran's military service. 2. Schedule the Veteran for the appropriate VA foot and ankle medical examinations regarding her claimed left Achilles tendonitis condition and obtain an opinion regarding service connection. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: (a) The examiner must elicit from the Veteran, and document in the examination report, a full history regarding the onset and continuity of her symptoms and any treatment; (b) Determine whether the Veteran ever had symptoms or a diagnosis of a left Achilles tendonitis disorder, either before or during the pendency of the claim, reconciling any evidence in the service and treatment records; (c) Address the imaging contained in the Veteran's service treatment records, specifically the September 2016 left foot X-rays and the January 2017 left ankle MRI; (d) Address the Veteran's lay statements, noting that the Veteran is competent to attest to matters for which she has first-hand knowledge, including observable symptomatology; (e) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any left foot condition(s) had its onset in, is aggravated by, or is otherwise related to military service; (f) Provide an opinion as to whether it is at least as likely as not (50 percent probability or higher) that any left foot condition(s) is caused or aggravated by service-connected conditions, to include the medications taken for these disorders: (v) Secondary service connection is warranted for any incremental increase in disability, regardless of permanence, if medically ascertainable; (vi) State whether there was an increase in disability; (vii) Describe any increase in disability in terms of diagnosis, severity, and duration; (viii) The examiner must address both causation, direct and secondary, and aggravation; (g) Provide a specific rationale, supported by data in the record, for any conclusions reached, noting that a VA opinion is considered inadequate when it relies exclusively on the lack of evidence in the service treatment records (STRs) to disassociate a claimed condition from the Veteran's military service. 3. The examiner should comment on the questions above and set forth the complete rationale, including generally accepted medical opinion, applicable studies and literature, and data from the evidence of record for all conclusions in the opinion addendum, noting that a VA opinion is considered inadequate when it relies exclusively on the lack of evidence in the service treatment records (STRs) to disassociate a claimed condition from the Veteran's military service. 4. If any report does not include adequate responses to the requested opinions, it must be returned to the providing examiner for corrective action. 5. Readjudicate the claim on appeal, and in the event the desired relief is not granted, return the matter to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.