Citation Nr: 21076473 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-24 298A DATE: December 23, 2021 REMANDED An initial rating greater than 30 percent for bilateral foot pes planus with arthritic changes is remanded. INTRODUCTION The Veteran had active service in the U.S. Army from July 1958 to June 1961. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020). This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2015 and July 2017, the Board remanded the appeal for further development. This case was returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2017, the Veteran and his spouse presented testimony at a Travel Board hearing at the AOJ before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In a January 2019 Board decision, the Board denied the initial rating issue on appeal. However, the Veteran appealed the Board's January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2020 Memorandum Decision, the Court set aside the Board's January 2019 Board decision that denied the Veteran an initial rating greater than 30 percent for bilateral foot pes planus with arthritic changes. The Court also remanded this issue for further adjudication. The Court in its July 2020 Memorandum Decision instructed the Board to remand the appeal for the AOJ to schedule the Veteran for a new VA foot examination to rate the current severity and manifestations of his service-connected bilateral foot disability, in compliance with the Court's directives. In March 2021, the Board once again remanded the appeal to the AOJ for further development, in order to implement the Court's instructions detailed in the above July 2020 Memorandum Decision. The case has now returned to the Board to determine if the AOJ complied with the development requested by the Board. REASONS FOR REMAND An initial rating greater than 30 percent for bilateral foot pes planus with arthritic changes is REMANDED. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, substantial compliance with the remand order, but not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). In any event, a failure by the Board to ensure compliance with previous remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with some aspects of the development requested in the Board's most recent March 2021 remand for the increased rating issue on appeal. First, in accordance with the instructions of the Board's March 2021 Board remand, the AOJ secured a November 2021 VA foot examination from a VA nurse practitioner. However, this VA foot examination, scheduled to ascertain the current severity and manifestations of his service-connected bilateral foot pes planus with arthritic changes, although probative, was not fully adequate. On this point, when VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the Court in its July 2020 Memorandum Decision had instructed the Board to secure a new VA foot examination to ascertain the current severity and manifestations of the Veteran's service-connected bilateral foot pes planus with arthritic changes, which complies with 38 C.F.R. § 4.59 and the Court's holdings in the cases of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board therefore carefully crafted its March 2021 remand instructions to meet the above legal requirements. However, the July 2021 VA nurse practitioner failed to directly answer multiple questions as posed by the Board in its remand, for the increased rating issue on appeal. Specifically, Instruction #2 of the March 2021 Board remand requested that in accordance with the July 2020 Memorandum Decision of the Court, the VA examiner (a) have the Veteran undergo additional X-rays for both feet; (b) answer whether the Veteran's service-connected arthritic changes in either foot involved two or more minor joints and occasional incapacitating episodes; (c) perform range of motion testing for both feet and / or ankles; (d) take various measures to ensure that the VA foot examination complies with the Court's precedential decision in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); and (e) take various measures to ensure that the VA foot examination complies with the Court's precedential decision in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board in its March 2021 Board remand laid out these instructions to the VA foot examiner in a detailed yet direct manner. That notwithstanding, the November 2021 VA foot examiner failed to address or follow several of the instructions listed above. Thus, although it will result in additional delay in adjudicating the appeal, a remand is required to ensure substantial compliance with the Board's previous March 2021 Board remand. The AOJ must obtain a VA addendum opinion answering the Board's specific inquiries on the increased rating issue on appeal for both feet. If the same November 2021 VA nurse practitioner is not available, another qualified VA clinician will provide the addendum opinion. Another VA examination for the Veteran's bilateral foot pes planus with arthritic changes is not necessary, unless the VA clinician specifically requests one. In addition, the VA clinician might determine that new X-rays are necessary to establish whether the Veteran's service-connected arthritic changes in either foot involve two or more minor joints and occasional incapacitating episodes. See 38 C.F.R. § 4.71, Diagnostic Code 5003. Second, as the appeal is already being remanded for further development (as explained above), the Board sees the Veteran's VA treatment records on file for the Gainesville, Florida VA healthcare system date to September 2020. And the Veteran's VA treatment records on file for the Tampa, Florida VA healthcare system date to March 2021. Any additional VA treatment records are within VA's constructive possession and are considered potentially relevant to the initial rating issue on appeal. Therefore, a remand is required to allow VA to obtain the following VA treatment records: (1) from the VA healthcare system in Gainesville, Florida dated from September 2020 to the present; and (2) from the VA healthcare system in Tampa, Florida dated from March 2021 to the present. This matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the following VA healthcare systems and associate them with the claims file: (a.) VA treatment records from the VA healthcare system in Gainesville, Florida, dated from September 2020 to the present; and (b.) VA treatment records from the VA healthcare system in Tampa, Florida, dated from March 2021 to the present. 2. After completion of step 1, for the increased rating issue for bilateral foot pes planus with arthritis, obtain a VA addendum opinion from the November 2021 VA nurse practitioner examiner. If this VA examiner is no longer available, another qualified VA clinician must provide the VA addendum opinion. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. It is unnecessary to perform another actual VA foot examination that is, only a medical opinion is required here. In accordance with a July 2020 Memorandum Decision of the Court, the VA examiner is asked to provide a response to and comply with the following: (a.) For each foot, does the Veteran's service-connected arthritic changes in either foot involve "two or more minor joints" and "occasional incapacitating episodes"? If necessary, to adequately answer this question, have the Veteran undergo additional X-rays for both feet. If new X-rays are unnecessary to answer the above question, please explain why. (Please be advised that VA purposes, multiple involvements of the interphalangeal, metatarsal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on a parity with major joints. Please also be advised that "incapacitating" is defined as "to deprive of capacity or natural power: disable" and synonyms are listed as "cripple, disable, hamstring, immobilize, paralyze, and prostrate. See https://www.merriam-webster.com/dictionary/incapacitating.). In answering the inquiry above, the VA examiner should also consider the following evidence of record: September 2006 VA X-rays showed mild bilateral pes planus and "mild degenerative changes...in both first metatarsal joints"; December 2006 private X-rays and evaluation from Dunnellon Podiatry Center with Dr. Stacy L. Witfill, podiatrist. These X-rays assessed pes planus and arthritic changes at the navicular cuneiform and Lisfranc joints. This may indicate that arthritis was present in two joints in each foot; June 2007 VA podiatry consultation documented slight degenerative joint disease in both feet; and August 2017 VA radiology report stated that there was "[n]o evidence for significant arthritic change." (b.) In order to comply with the Court's precedential decision in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), the VA foot examination should include range of motion testing for both feet in active motion, passive motion, weight-bearing, and nonweight-bearing. Importantly, if the VA foot examiner is unable to conduct all the required Correia testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the feet, the VA examiner should clearly explain why that is so. (It appears that the previous November 2021 VA foot examiner performed range of motion testing for both feet in active motion and in weight-bearing. However, the VA examiner failed to discuss the relevance of the other required Correia testing (passive motion and nonweight-bearing) in this Veteran's particular situation). (c.) In order to comply with the Court's precedential decision in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the VA examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups of the feet, and the degree of functional loss during flare-ups or repetitive use. If it is not possible to provide a specific measurement based on direct observation, the VA examiner should provide an estimate, if at all possible, of the additional impairment (e.g., range-of-motion loss), due to flare-ups or repetitive use of the feet based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the VA examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the VA examiner (he or she does not have the knowledge or training). (It appears that the previous November 2021 VA foot examiner did in fact correctly elicit information regarding the severity, frequency, and duration of any flare-ups of the feet, and the degree of functional loss during flare-ups or repetitive use. However, the VA examiner failed to estimate, if at all possible, the degree of additional impairment (e.g., range-of-motion loss), due to flare-ups or repetitive use of the feet based on the other evidence of record and the Veteran's statements. And the VA examiner failed to indicate if it is not possible to provide a specific measurement without speculation, whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the VA examiner (he or she does not have the knowledge or training)). ***The VA examiner and the AOJ are both advised that these instructions are in accordance with an earlier July 2020 Memorandum Decision of the Court*** DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.