Citation Nr: 21076516 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-60 185 DATE: December 27, 2021 REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for left shoulder bursitis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to August 1985, December 2001 to November 2002, March 2003 to March 2004, May to August 2004, and August to September 2007, with additional service in the Army National Guard and Air Force Reserves. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board remanded this matter for further development in June 2021. A Board remand 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). Unfortunately, although the Veteran was provided with an additional VA examination, there has not been substantial compliance with the Board's previous remand directives regarding the issue of service connection for pes planus and left shoulder bursitis. The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) ("[The] Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The Board's June 2021 decision found that the August 2016 VA examination reports were inadequate under Buchanan and Barr in answering whether the Veteran's military service caused or aggravated his bilateral pes planus and left shoulder bursitis as the rationales were based on the absence of treatment shown within service treatment records. In the October 2021 addendum medical opinions, the examiner concluded that the Veteran's pes planus and left shoulder bursitis were less likely than not due to his military service. In support of these conclusions, the examiner used the same inadequate rationales found in the August 2016 VA examination reports: "the service medical record is negative for a left shoulder condition during service" and that the December 1994 Air National Guard enlistment physical examination was positive for mild asymptomatic pes planus, but no evidence showed it occurred during service. The examiner provided no further explanation. Indeed, these opinions are also inadequate under Buchanan and Barr. Further, a VA examiner's failure to consider the veteran's testimony when formulating his or her opinion, as done here, renders that opinion inadequate. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020). Because the examiner's medical opinions fail to comply with the Board's prior remand instructions, the Board must remand the claims once again to obtain adequate opinions. See Barr, 21 Vet. App. at 311. The Board is obligated by law to ensure compliance with its directives, and those of the appellate courts. Where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 271. Therefore, a remand for additional medical opinions is necessary. The matters are REMANDED for the following action: Obtain a new VA opinion to address the etiology of the Veteran's bilateral pes planus and left shoulder bursitis. The examiner must review the claims file. The examiner is asked to respond to the following: a) Is bilateral pes planus at least as likely as not related to service, including due to wearing boots while marching, climbing ladders, carrying heavy equipment, and engaging in other physical activities during active-duty service from 1982 to 1985? b) If the examiner finds bilateral pes planus clearly and unmistakably preexisted service, was it clearly and unmistakably not aggravated by service? c) Is left shoulder bursitis at least as likely as not related to service, including carrying heavy equipment while climbing ladders in service? (Continued on the next page) The examiner should provide a rationale to support all opinions expressed. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Costa, Stephanie D. 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.