Citation Nr: 21071745 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-52 836 DATE: December 1, 2021 REMANDED Entitlement to service connection for a left lower extremity condition, to include a tibia stress fracture and/or a foot disorder, is remanded Entitlement to service connection for a right lower extremity condition, to include a tibia stress fracture and/or a foot disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the Army National Guard from July 5, 1998 to August 19, 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2018, when they were denied. The Veteran timely filed an appeal to the Court of Appeals for Veterans Claims (Court), which vacated the May 2018 decision and remanded these issues back to the Board in October 2019. In April 2020, the Board remanded the claims for examinations and opinions consistent with the Court's decision. These opinions were obtained in August 2020, after which time these claims returned to the Board. The Board again remanded these claims in February 2021, after determining that additional development was needed to properly adjudicate these claims. In the November 2021 Appellate Brief, the Veteran's representative alludes to a connection between physical activity and diabetes prevention and treatment and appears to be requesting consideration of secondary service connection, including aggravation. However, although the Veteran has a diagnosis of diabetes, she is not service connected for diabetes. It is possible the representative is contending the Veteran's diabetes is aggravated by her bilateral lower extremity condition, but if this is the case, the Board advises the Veteran and her representative to file a new claim to address the issue. Service Connection Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current chronic disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either caused or aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The United States Court of Appeals for the Federal Circuit has stated that "pain in the absence of a presently-diagnosed condition can cause functional impairment." See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). This decision also noted that "to establish a disability, the veteran's pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity." Id. This indicates that pain alone may be a disability for VA service connection purposes. In response to Saunders, in Wait v. Wilkie the United States Court of Appeals for Veterans Claims stated that "to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity." Wait v. Wilkie, 33 Vet. App. 8, 19 (2020). 1. Entitlement to service connection for a left lower extremity condition, to include a tibia stress fracture and/or foot disorder, is remanded. 2. Entitlement to service connection for a right lower extremity condition, to include a tibia stress fracture and/or foot disorder, is remanded. In its February 2021 remand, the Board directed the RO to obtain the Veteran's outstanding Mississippi Army National Guard service treatment records. The RO obtained these records in February 2021. Therefore, the Board finds the RO substantially complied with its remand instructions in this capacity. Unfortunately, the Board once again finds that a remand is necessary due to inadequate VA medical examinations. The Veteran contends that her left and right lower tibia stress fractures are related to her time performing ACDUTRA. The Veteran has also indicated she has bilateral foot pain that is also related to her time on ACDUTRA. The Board previously found that the Veteran was also making a bilateral foot condition claim along with her bilateral lower extremity condition claim and instructed the RO to obtain a bilateral foot examination. The Veteran was afforded an in-person VA examination in August 2020, which the Board previously determined was inadequate. In May 2021, an addendum opinion concerning the Veteran's bilateral lower leg condition and a separate bilateral foot examination were completed in accordance with the Board's February 2021 remand instructions. In this opinion, the examiner referenced the x-rays taken during the August 2020 examination, stating these x-rays indicated there were no stress fractures present in either the left or right tibia, and therefore the examiner concluded the Veteran did not have a current diagnosis of stress fractures. Additionally, the examiner noted that the Veteran's claimed left and right stress fractures would have been less likely than not related to service because stress fractures typically heal within 6 to 8 weeks, or up to 10 to 12 weeks if the stress fracture is more severe. The examiner further noted that in addition to there being no current disability, a left or right tibia stress fracture would not have resulted from the incidents described by the Veteran during her Advanced Individual Training (AIT) in 1998, "including whether she would have been capable of completing a 2-mile run in 20 minutes and 6 seconds with stress fractures of the right and/or left tibia." The examiner determined that the Veteran's left and right tibia stress fractures in 1998 fully healed with no residuals. Additionally, the Veteran was provided a bilateral foot examination in May 2021, as instructed by the Board in its February 2021 remand. In this examination, the examiner found a diagnosis of bilateral hallux valgus. The Veteran also reported no pain at rest, but she complained of pain with prolonged, excessive, and repetitive persistent use, with relief coming with rest. She also had a right bunionectomy in 2014. The examiner opined that the Veteran's bilateral foot condition was less likely than not due to service nor related to her reported injuries during AIT in 1998. The examiner further notes that along with there being no in-service diagnosis of a foot condition, stress fractures typically heal within 6 to 8 weeks, or up to 12 weeks for severe injuries. The Veteran also submitted private treatment records from July 2021 that indicate she continues to experience bilateral lower extremity pain that radiates to her ankles, as well as swelling. The treating physician notes that the Veteran had similar bilateral lower extremity pain during service, which was later identified as stress fractures during her AIT. The Veteran also reported her pain is progressively worsening with time and becomes worse with activity. The treating physician ordered x-ray imaging of the Veteran's bilateral lower extremities; however, no x-rays were included in the claims file. In the November 2021 Appellate Brief, the Veteran's representative cited to an online medical article from the American Academy of Orthopedic Surgeons and the Cleveland Clinic, both of which discuss symptoms and treatment of stress fractures. However, although this information is helpful in discussing stress fractures, it is merely informational and cannot provide a nexus opinion for the Veteran's claimed bilateral lower extremity condition. After reviewing the evidence of record, the Board finds that the May 2021 addendum opinion and May 2021 bilateral foot examinations are inadequate. Although the May 2021 addendum opinion notes that the events described by the Veteran in service would not have caused her stress fractures, the examiner does not provide any rationale to support this statement, nor does the examiner address the Veteran's reports of pain during her runs in service or the pain she currently experiences in her lower extremities. Additionally, the examiner fails to address whether the Veteran would have been capable of completing a 2-mile run in 20 minutes and 6 seconds, as specifically requested by the Board in its April 2020 and February 2021 remands. Furthermore, the examiner fails to adequately address whether there is any medical reason to accept or reject the Veteran's belief that any of her current disabilities of the left and/or right lower extremities are related to the incidents described during her AIT training in 1998. As for the May 2021 bilateral foot examination, although the examiner found the Veteran's bilateral hallux valgus was less likely than not due to service or related to the Veteran's reports of injuries during her AIT, the examiner failed to provide any rationale for this statement. Additionally, the examiner provides no rationale for the opinion that the Veteran's hallux valgus and bunions are not related to service. As explained above, the May 2021 addendum opinion and bilateral foot examination are both inadequate because the examiner failed to address the issues requested by the Board in its February 2021 remand. A remand by the Board confers on the claimant a legal right to compliance with the remand orders. See 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. Additionally, both examinations failed to provide an adequate rationale as to why the Veteran's bilateral lower extremity and bilateral foot conditions were less likely than not related to service. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate exam. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, a remand is necessary in order to obtain addendum medical opinions which comply with the Board's remand instructions. Accordingly, these matters are REMANDED for the following action: 1. Send correspondence to the Veteran and her representative requesting any outstanding private medical treatment records, including the x-rays mentioned in the July 2021 treatment note previously associated with the record on October 18, 2021. 2. Obtain an addendum medical opinion from a qualified examiner on the nature and etiology of the Veteran's left and right lower extremity tibia stress fractures. The examiner is to address the following: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left and right lower extremity pain began during service or is due to or otherwise related to service, to include reports of stress fractures in her bilateral tibia bones during AIT and related symptoms of pain while running for her physical fitness tests. (b.) Provide a thorough explanation as to whether the Veteran would have been capable of completing a 2-mile run in 20 minutes and 6 seconds during service with a left and/or right tibia stress fracture. (c.) Provide a thorough discussion as to whether or not there is any medical reason to accept or reject the Veteran's belief that any current left and/or right lower extremity disability is related to the incidents described during her AIT in 1998. The examiner is reminded that pain alone is sufficient to constitute a disability. If the examiner determines the Veteran does not have a current diagnosis of left and/or right tibia stress fractures, they must explain why the Veteran's bilateral lower extremity pain itself, which she has reported began in service and has continued ever since, is not due to or otherwise related to her in-service stress fractures. When discussing whether the Veteran's current lower extremity pain is a residual of her in-service bilateral tibia stress fractures, the examiner must explain what constitutes residuals of healed stress fractures and why the Veteran's currently reported symptoms are or are not considered residuals. 3. Obtain an addendum opinion from a qualified examiner addressing the nature and etiology of the Veteran's left and right hallux valgus. The examiner must provide a thorough discussion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left or right hallux valgus began in service or is due to or otherwise related to service, to include reports of injury during her time at basic training, including the Veteran's July 11, 1998 diary entry documenting the event. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.