Citation Nr: 21073080 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-61 731 DATE: December 7, 2021 REMANDED Entitlement to service connection for right ankle disorder is remanded. Entitlement to service connection for left foot numbness and tingling (left foot disability) is remanded. Entitlement to service connection for right foot numbness and tingling (right foot disability) is remanded. Entitlement to service connection for gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to an initial disability rating in excess of 10 percent for low back disability prior to December 3, 2020, and 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served in the United States Navy on active duty from September 2006 to August 2013. The issues come before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board denied the Veteran's claims to reopen entitlement to service connection for right ankle disability and bilateral foot numbness and tingling, and the Veteran's claim for an increased initial rating for low back disability. Additionally, the Board remanded the Veteran's claim for entitlement to service connection for gastrointestinal disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found that VA failed to provide adequate reasons and bases for the denial of the Veteran's claims. Pursuant to the JMPR, the Court vacated and remanded the matter to the Board. Subsequently the Board remanded the above issues in August 2020 and May 2021. The matters are again before the Board for appellate review. During the pendency of the Veteran's appeal, in a February 2021 rating decision, the RO granted an increased initial rating for the Veteran's low back disability to 20 percent disabling, effective December 3, 2020. As the full benefit was not granted, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to service connection for right ankle disorder is remanded. The Veteran contends that he suffers from a right ankle condition related to an in-service injury. While the Board regrets further delay, another remand is necessary to provide the Veteran with an adequate medical opinion, and to ensure substantial compliance with the May 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The May 2021 Board remand requested that an examiner provide a medical opinion addressing the Veteran's right ankle pain and whether the Veteran's pain resulted in functional impairment of earning capacity. The Veteran underwent a VA ankle examination in July 2021. The Veteran reported injuring his right ankle in 2021 during active duty. The Veteran reported current symptoms of pain. The Veteran reported that his right ankle condition impacted his ability to perform occupational tasks and ordinary activities, as his ankle rolls easily. The Veteran reported moderate flare-ups of his ankle condition, which occurred randomly and lasted a day. The July 2021 VA examination noted pain in the right ankle which limited functional impairment during flare-ups. However, the examination reported that there was no functional impairment of the right ankle due to flare-ups. Additionally, the VA examiner noted that the Veteran's right ankle condition did not impact his ability to perform any type of occupational task. The VA examiner provided the medical opinion that it was less likely than not that the Veteran's claimed ankle condition incurred in or was caused by the Veteran's in-service injury. The examiner reported the Veteran did not have a diagnosis of an ankle disorder. Here, the July 2021 VA examination failed to address the Veteran's reported symptoms of pain and the Veteran's assertion that his right ankle condition, including pain during flare-ups, impacted his abilities to perform occupational function and ordinary tasks. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Further, where pain causes functional impairment of earning capacity, a disability for VA compensation purposes exists, even when there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, remand is required to provide the Veteran a medical opinion adequately addressing whether the Veteran's right ankle pain resulted in functional impairment of earning capacity in substantial compliance with the May 2021 Board remand. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). 2. Entitlement to service connection for left foot disability and right foot disability is remanded. The Veteran contends that his bilateral foot disorder, described as numbness and tingling in his toes and the outside of his feet, incurred in service. The May 2021 Board remand requested that an examiner provide a medical opinion addressing the Veteran's symptoms of numbness and tingling in his feet and whether the Veteran's symptoms alone resulted in functional impairment of earning capacity. In July 2021, the RO provided the Veteran a VA foot conditions examination. The Veteran reported he began experiencing numbness and tingling in his feet while in service in 2010. The Veteran noted he had current symptoms of numbness and tingling in his toes and the outside of his feet. The Veteran also reported that he experienced pain in his left foot. The Veteran reported moderate flare-ups of his right foot condition that lasted a day, which were precipitated by rolling his ankle. The Veteran noted mild flare-ups of his left foot condition that were precipitated by overuse. The Veteran noted his flare-ups of his left and right foot conditions are alleviated with rest. The Veteran noted that his bilateral feet conditions make occupational functioning and ordinary activities uncomfortable. The July 2021 VA examination determined there was no diagnosis for the Veteran's bilateral foot conditions with numbness and tingling, as the reported symptoms were non-specific and did not correlate to clinical testing. The VA examiner noted the Veteran's symptoms and examinations were not sufficient to support musculoskeletal diagnoses. Additionally, the VA examiner stated the Veteran's bilateral feet conditions with numbness and tingling did not follow a dermatome pattern sufficiently to support a diagnosis of peripheral neuropathy. The VA examiner noted that the Veteran's bilateral foot disability and peripheral neuropathy did not impact the Veteran's ability to perform any type of occupational task. The VA examiner provided the medical opinion that it was less likely than not that the Veteran's bilateral foot conditions with numbness and tingling incurred in or was caused by the Veteran's in-service injury, event, or illness. The examiner acknowledged that the Veteran complained of constant paresthesia in bilateral toes without aggravating or alleviating factors. However, the VA examiner opined that the Veteran's reported symptoms and examination findings were not sufficient to support a diagnosis of lower extremity radiculopathy. Thus, the examiner concluded that the Veteran's left and right foot conditions were unrelated to the Veteran's service-connected back disability. The Board finds remand is necessary to obtain a clarifying medical opinion adequately addressing the Veteran's claimed symptoms affecting his left and right feet, including pain, numbness, and tingling, and whether the symptoms resulted in functional impairment of earning capacity. While the July 2021 VA examiner provided an opinion addressing why the Veteran's symptoms and examination findings did not support a current diagnosis of bilateral foot disabilities, the examiner's opinion falls short of addressing whether the Veteran's claimed symptoms result in impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018) (holding that pain in the absence of an underlying diagnosed condition can cause functional impairment, may qualify as a disability for VA purposes); see also Martinez-Bodon v. Wilkie, Vet. App. 393, 404 (2020) (holding that the Federal Circuit's decision in Saunders is not limited to pain); and see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (evidence must demonstrate symptoms reach the level of a functional impairment of earning capacity in an average person). VA has a duty to provide the veteran a thorough medical examination, one which takes into account the veteran's prior medical history and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is fully informed. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A mere conclusory medical opinion is insufficient. Id. at 312. Without a medical opinion that clearly addresses the Veteran's symptoms, the Board is left to rely on its own lay opinion, which it is forbidden from doing. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Accordingly, remand is necessary to provide a medical opinion addressing the Veteran's symptoms affecting his right and left feet. 3. Entitlement to service connection for gastrointestinal disorder, to include GERD, as secondary to service-connected PTSD, is remanded. The Veteran contends that his claimed gastrointestinal disorder is related to his service-connected posttraumatic stress disorder (PTSD). The Veteran underwent a VA examination in July 2021 addressing the Veteran's gastrointestinal disorder. The Veteran complained of nausea. The VA examiner reported that the Veteran did not demonstrate symptoms or pathological findings to support the diagnosis of a functional or structural gastrointestinal disorder. However, the VA examiner noted the Veteran's diagnosis of GERD. The examiner noted that GERD was not a "gastrointestinal disorder or gastrointestinal disability." Further, the VA examiner concluded that the Veteran's diagnosis of GERD was less likely than not related to his active duty. Additionally, the VA examiner provided the medical opinion that it was less likely than not that the Veteran's GERD was causally related to his diagnosis of PTSD. The VA examiner cited medical literature and stated that no etiopathogenic relationship has been identified between psychological conditions and the development of GERD. The examiner also opined that it was less likely than not that the Veteran's GERD was aggravated beyond its natural progression by his PTSD. The examiner noted the Veteran reported the onset of his gastric disorder in 2012, and the Veteran's symptoms were not severe enough to necessitate medical evaluation or drug therapy. Moreover, the VA examiner cited medical literature and global research results noted the relationship between psychological factors and GERD symptoms have been inconsistent. In November 2021, the Veteran's representative submitted a medical journal noting a positive relationship between veterans with PTSD and gastrointestinal symptoms, including diarrhea and GERD. The literature concluded that veterans diagnosed with PTSD may be more likely to have gastrointestinal symptoms. Here, the Board finds remand is necessary to provide the Veteran a medical opinion addressing the favorable medical evidence presented in the medical journal submitted into the record November 2021. 4. Entitlement to an initial disability rating in excess of 10 percent for low back disability prior to December 3, 2020, and 20 percent thereafter is remanded. The Veteran contends that the symptoms of his low back disability merit a greater disability evaluation. The Veteran's October 2019 VA treatment record reported the Veteran complained of chronic low back pain with worsening symptoms starting two months prior. The Veteran's VA treatment records reveal the Veteran underwent private physical therapy from November 2019 through February 2020, for evaluation and treatment of the Veteran's low back disability. The Veteran's VA treatment records note the private physical therapy records were scanned documents available in VistA Imaging. The Veteran submitted a private physical therapy progress note from February 2020, which included range of motion testing for the Veteran's low back. However, private physical therapy records from November 2019 to February 2020 are absent from the record. As such VA must obtain outstanding VA medical records. VA has a duty to assist the Veteran in obtaining evidence to support all substantially complete initial and supplemental claims. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c). VA's duty to assist requires VA to make as many requests as are necessary to obtain relevant records, if available, from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Accordingly, remand is required to obtain the Veteran's private physical therapy records from November 2019 through February 2020, indicated in the Veteran's VA treatment records as scanned into VistA Imaging. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the July 2021 VA examiner regarding the Veteran's right ankle condition, to include symptoms of pain, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, to include the Veteran's lay statements regarding symptoms of right ankle pain, the examiner must opine as to whether the Veteran's right ankle pain, including during flare-ups, reaches a level of severity resulting in the functional impairment of earning capacity. If the examiner determines the Veteran's right ankle pain causes functional impairment of earning capacity, please provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's right ankle symptoms of pain, had its onset during or is otherwise etiologically related to active-duty service. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 2. Obtain a clarifying opinion from the July 2021 VA examiner regarding the Veteran's bilateral feet conditions, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, to include the Veteran's lay statements regarding his bilateral feet conditions, the examiner must opine as to whether the Veteran's bilateral feet conditions, to include symptoms of pain, numbness, and tingling, reaches a level of severity resulting in the functional impairment of earning capacity. If the examiner determines the Veteran's bilateral feet conditions, to include symptoms of pain, numbness, and tingling causes functional impairment of earning capacity, please provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral foot symptoms, including pain, numbness, and tingling, had its onset during or is otherwise etiologically related to active-duty service. 3. Obtain an addendum opinion from the July 2021 VA examiner regarding the Veteran's GERD, or, if not available, another appropriately qualified VA medical professional. If the examiner determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. Following a review of the evidence of record, the examiner must opine as to: a) Whether it is at least as likely as not (50 percent probability or more) the Veteran's gastrointestinal disorder, including GERD, was proximately caused by or the result of the Veteran's service-connected PTSD. b) Whether it is at least as likely as not (50 percent probability or more) the Veteran's gastrointestinal disorder, including GERD, was aggravated by the Veteran's service-connected PTSD. For the purposes of this examination, the examiner must address the medical literature, submitted by the Veteran's representative in November 2021, addressing the relationship between veterans with PTSD and gastrointestinal symptoms, including GERD. If secondary service connection is not found, please provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's GERD, had its onset during or is otherwise etiologically related to active-duty service. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. 4. Obtain any outstanding VA treatment records dating since service, including any relevant records available through Vista Imaging, or any similar viewing tool. Specifically, obtain the private physical therapy records from November 2019 to February 2020. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.