Citation Nr: 21075469 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 12-30 825 DATE: December 20, 2021 REMANDED Service connection for a right foot disability, to include hallux valgus, degenerative joint disease, tinea pedis, plantar fasciitis, pes planus, achilles tendonitis, dermatophytosis, and diabetic neuropathy (grade 1 ulceration), is remanded. Service connection for a left foot disability, to include hallux valgus, degenerative joint disease, tinea pedis, plantar fasciitis, pes planus, achilles tendonitis, dermatophytosis, and diabetic neuropathy (grade 1 ulceration), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1977 until his discharge under honorable conditions in May 1978. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a December 2009 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In January 2015, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. The case has a long procedural history. Following two Board remand orders in April 2015 and December 2016, the Board denied the Veteran's claims for service connection in an August 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 Order, the Court vacated the Board's decision based on the parties' Joint Motion for Partial Remand, which stated that the Board failed to address why a March 2017 VA examination and opinion were adequate in light of the examiner's failure to address relevant lay evidence and failure to offer opinions on some of the Veteran's feet disabilities. The Court remanded the appeal back to the Board. On return to the Board, the Board remanded the case to the VA Regional Office in September 2019 for new VA examinations and medical opinions, which the VA Regional Office obtained in January 2020. The Board then issued a decision in August 2020 denying service connection for the Veteran's claimed bilateral foot disabilities. Once again, the Veteran appealed that decision to the Court, which again vacated the Board's decision in an August 2021 order based on the parties' Joint Motion for Remand. In their motion, the parties stipulated that the January 2020 examiner failed to provide an opinion addressing the etiology of the Veteran's plantar fasciitis; the examiner failed to address the relevant lay evidence of record, including the Veteran's in-service feet problems caused by his combat boots and his statements about the continuous nature of his disabilities at separation and thereafter; and the Board failed to address the Veteran's diagnoses of tinea pedis and diabetic neuropathy within its decision. The case now returns to the Board for adjudication on remand from the Court. The Board finds remand to the VA Regional Office is again required in order to comply with the Court's August 2021 order based on the stipulations of the parties. 1. Service connection for a right foot disability is remanded. 2. Service connection for a left foot disability is remanded. The Board finds it necessary to address the complex nature of the Veteran's claims for service connection to clarify the issues on appeal and to assist the VA Regional Office (and examiner) on remand. Initially, the Veteran sought service connection for "feet" conditions, which was a broad claim that encompassed all reasonable feet disabilities. See June 30, 2009, VA Form 21-526, Application for Compensation. A November 2009 VA examiner diagnosed the Veteran with bilateral foot diabetic neuropathy, tinea pedis, hallux valgus, and degenerative joint disease (osteoarthritis). A 2015 VA podiatry note diagnosed the Veteran with bilateral foot dermatophytosis, achilles tendonitis, pes planus, hallux valgus, degenerative joint disease (osteoarthritis), and diabetic neuropathy (grade 1 ulceration). A 2017 VA examiner diagnosed the Veteran with bilateral hallux valgus, pes planus, and plantar fasciitis. A 2020 VA examiner diagnosed the Veteran with bilateral pes planus, hallux valgus, degenerative joint disease (osteoarthritis), achilles tendonitis, tinea pedis, and diabetic neuropathy (grade 1 ulceration). The Board believes that these evolving diagnoses have caused confusion and have ultimately delayed appropriate adjudication of the Veteran's claims for service connection. At this point, the Board stresses that the requirement for a veteran to have a "current disability," for purposes of service connection, is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the following disabilities are adequately documented as being present during the Veteran's pending claims for service connection: 1. bilateral dermatophytosis 2. bilateral pes planus 3. bilateral hallux valgus 4. bilateral plantar fasciitis 5. bilateral degenerative joint disease (osteoarthritis) 6. bilateral achilles tendonitis 7. bilateral tinea pedis 8. bilateral diabetic neuropathy (grade 1 ulceration) Therefore, each of these foregoing disabilities is properly before VA for consideration for service connection. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The January 2020 VA examiner, while providing thoughtful opinions and rationales, did not address the diagnoses of bilateral dermatophytosis or bilateral plantar fasciitis. In addition, the January 2020 VA examiner did not sufficiently consider or discuss certain lay evidence of record, to include the following: 1. Veteran's lay statements to VA medical professionals in April 2015, October 2012, and November 2005 as to his continued bilateral foot pain. 2. His testimony during his January 2015 Board hearing that he did not report experiencing foot pain at the time of his 1978 separation examination because he "was ready to go home," but that he did have foot pain at the time of his separation that continued after his separation from service for which he sought treatment at local hospital. 3. His spouse testimony about the Veteran's callouses and self-treatment. 4. His in-service medical records that documented bilateral foot pain as result of the Veteran's combat boots (to note, the January 2020 VA examiner reported that "a major contributing cause of hallux valgus deformity is wearing constricting shoes."). Based on the foregoing, remand is required for addendum opinions addressing the etiology of each of the listed disabilities above in light of relevant lay and medical evidence. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records. Reasonable attempts must be made to obtain relevant private medical records. 2. After any additional records are associated with the claims file, obtain addendum opinions from the January 2020 VA examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's bilateral foot disabilities. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's: (a.) bilateral dermatophytosis (b.) bilateral pes planus (c.) bilateral hallux valgus (d.) bilateral plantar fasciitis (e.) bilateral degenerative joint disease (osteoarthritis) (f.) bilateral achilles tendonitis (g.) bilateral tinea pedis (h.) bilateral diabetic neuropathy (grade 1 ulceration) had their respective onsets in or are otherwise etiologically related to an in-service event, injury, or disease. In rending his or her opinions, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) In-service medical treatment records, including: i. in-service medical treatment for bilateral foot pain (October 25, 1977); ii. callouses on the right and left foot due to military boots (October 21, 1977); iii. left foot achilles tendonitis (October 6 and 13,1977); and iv. retrocalcaneal heel pain abrasion from boot (in part due to running) for which he was prescribed Tpad for both boots (September 28, 1977). (b.) The Veteran's lay statements to VA medical professionals, which are well-documented in the January 2020 VA examiner's opinion under the heading "File review revealed the following." (c.) The Veteran's Board hearing testimony during which he testified that at the time of his separation from service he did not report issues with his feet because he wanted to go home, but that he did have feet issues and immediately sought medical treatment at a local hospital, and that his bilateral foot issues and pain have been continuous. The examiner is informed that lay evidence of continuing symptoms of a disability following service can be sufficient to demonstrate a medical nexus despite medical documentation or prior opinions addressing the same. See Savage v. Gober, 10 Vet. App. 488, 497 (1997). (d.) The Veteran's spouse's Board hearing testimony that she has observed the Veteran's callouses and self-treatment. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of any foot disability in service or the assertion that an in-service event, injury, or illness led to his current feet disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinions, including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. It is not only the continuity of treatment that is relevant, but also the continuity of symptoms regardless of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). If the examiner determines a disability was acute rather than chronic, the examiner should explain how he or she arrived at that conclusion rather providing a conclusory opinion. For example, what evidence led to that conclusion, what would the examiner expect to see if a condition was chronic, how do the Veteran's lay statements, if any, affect the conclusion? If the examiner relies on medical treatises, the examiner should identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. The VA Regional Office must ensure the VA examiner adequately addresses each of the disabilities listed in directive no. 2 above. The VA Regional Office must ensure all development is completed to its logical end. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.