Citation Nr: 21074749 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 16-22 681 DATE: December 16, 2021 REMANDED Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. Entitlement to a compensable rating for tarsal coalition, hallux valgus, right foot disability is remanded. Entitlement to a compensable rating for tarsal coalition, hallux valgus, left foot disability, is remanded. REFERRED The Veteran filed a claim, in relevant part, to include service connection for bilateral pes planus, which was denied in an October 2007 rating decision. New and material evidence was not submitted within the one-year period following notification of the decision, nor did the Veteran appeal this decision by filing a Notice of Disagreement (NOD); therefore, the decision became final. 38 U.S.C. § 7105 (a); 38 C.F.R. §§ 20.1103. Shortly thereafter in October 2008, the Veteran filed an informal claim to add bilateral foot condition as a service-connected condition. However, the RO interpreted the claim as an increased rating claim for the Veteran's service-connected tarsal coalition disabilities and adjudicated it as such. The Board notes that VA has a duty to read claims liberally and to maximize benefits for veterans. Therefore, the Board interprets the claim as a claim of service connection for a bilateral foot condition, to include pes planus. Since this claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ) in the first instance, the claim is REFERRED to the AOJ for appropriate action. 38 C.F.R. § 20.904(b). REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1999 to December 2006, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) from January 2009 (bilateral foot) and October 2012 (bilateral hand) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before a Veterans Law Judge (VLJ) via videoconference. A transcript of the hearing was prepared and added to the record. In February 2020, the Board dismissed the Veteran's service connection claim for depression and denied the Veteran's increased rating claim for his service-connected lumbar myofascitis. The remaining claims currently on appeal were remanded for further development and have been returned to the Board for further appellate review. Of note, the VLJ who conducted the Veteran's hearing is not able to participate in the Veteran's appeal. To that end, the Veteran was sent a letter in October 2021 notifying him of this and advising the Veteran that he could have a new hearing before a different VLJ. The Veteran was also informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. Accordingly, since the Veteran has not responded, the Board will proceed with the adjudication of the claims. REASONS FOR REMAND 1. Entitlement to service connection for bilateral carpal tunnel syndrome is remanded. The Board regrets further delay but another remand is required. Pursuant to the Board's February 2020 remand directives, a VA examination was obtained in July 2020. The Board asked the examiner to opine on whether the Veteran's diagnosed bilateral carpal tunnel syndrome was related to service. In rendering an opinion, the Board asked the examiner to essentially address and accept as true the Veteran's credible reports that his military occupational specialty of being a cannon crew member required him to perform repetitive motion for putting fuses on the rounds and of having to perform repetitive motion on computers on heavy artillery pieces at awkward angles. However, in rendering the negative opinion, the examiner did not do so, and instead relied on a lack of documentation showing treatment or a diagnosis of right and left carpel tunnel syndrome in the Veteran's service treatment records (STRs). The examiner also relied on a lack of continuity of care since service. Thus, this opinion is inadequate, and an addendum opinion is needed to ensure substantial compliance with the Board's February 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board emphasizes that any credibility findings are squarely within the purview of the Board. 2. Entitlement to a compensable rating for tarsal coalition, hallux valgus, right foot disability, is remanded. 3. Entitlement to a compensable rating for tarsal coalition, hallux valgus, left foot disability, is remanded. Pursuant to the Board's February 2020 remand directives, a VA examination was obtained in July 2020. The examiner noted that the Veteran did not suffer from flare-ups, however, given the Veteran's testimony at the June 2019 Board hearing, along with other evidence of record, the Board finds that the record indicates the Veteran suffers from flare-ups and should be considered as a part of the Veteran's disability picture. A remand is necessary to consider this evidence. Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 3. After records development is completed, the claims file should be sent to a VA examiner, other than the July 2020 VA examiner. The examiner must review the claims folder including this Remand. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's currently diagnosed bilateral carpal tunnel syndrome had its onset during service or is otherwise related to an in-service injury, event, or disease. In addressing this question, the examiner must discuss the Veteran's assertion that his military occupational specialty of being a cannon crew member required him to perform repetitive motion for putting fuses on the rounds and of having to perform repetitive motion on computers on heavy artillery pieces at awkward angles, which the examiner must accept as true, despite the absence of "objective documentation," and determine whether a nexus to service is "medically plausible" based on the same. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. 4. Schedule the Veteran for a VA bilateral foot examination, with an examiner other than the September 2012 and July 2020 VA examiners, to determine the current symptoms, level of severity, and functional impairment associated with his right and left foot disabilities. The examiner must review the claims folder including this Remand. (a) Please address the Veteran's contentions of flare-ups and that sometimes he is forced to crawl on the ground to avoid walking on his feet because the pain is so bad, as related in his June 2019 Board Hearing. (Continued on the next page) In rendering opinions, the Veteran's statements may not be discounted solely on the lack of confirmation in the medical records. Please be advised that any negative opinion premised solely on an absence of treatment will be returned as inadequate. If the Veteran's reported history is discounted, the examiner must provide a reason for doing so. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without speculation, please indicate whether there is any additional evidence that would enable you to do so, or whether the inability to opine is based on the limits of medical knowledge. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.