Citation Nr: 21076607 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 07-17 757 DATE: December 27, 2021 REMANDED Entitlement to service connection for a lumbosacral disability is remanded. Entitlement to service connection for a bilateral foot disability, other than bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 to February 1989 and February 1991 to May 1991. He also served on various periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for lumbosacral and bilateral foot disabilities. In the course of this appeal, the Board has denied service connection for bilateral pes planus; the Veteran did not appeal that denial. These claims were previously before the Board in February 2011, May 2013, October 2013, June 2016, February 2020, and March 2021 decisions. The Board has consistently remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. The Board has remanded for specific opinions relevant to the Veteran's theories of entitlement, discussed in more detail below. The claims are back before the Board for further appellate proceedings. Looking at the most recent procedural history, the Board notes that in the February 2020 decision, the Board denied the claims on appeal. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMR. The parties agreed in the JMR that the Board did not adequately discuss whether the Veteran's statements demonstrated a continuity of symptomatology sufficient for entitlement to service connection. In March 2021, the Board remanded for an opinion that addresses all theories of entitlement. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a lumbosacral disability is remanded. 2. Entitlement to service connection for a bilateral foot disability is remanded. Given the extensive procedural background and numerous remands, the Board will summarize the significant findings by the Board and the Court at this stage. The Veteran has met all elements necessary to trigger the duty to assist in obtaining a VA examination under McLendon. See February 2011 Board remand. The following, dated, VA examination reports have been found inadequate for adjudicative purposes: March 2011, October 2014, March 2017, and August 2019. See October 2013, June 2016, and March 2021 Board remands. Significantly, the reports have consistently discarded the Veteran's assertions of continuous pain since service as related to his disabilities. Outside of VA examination reports, there is no other competent medical evidence of record to establish a nexus between the Veteran's service and his current disabilities. The Board notes that the Veteran's military occupational specialty includes 7 years as a medical non-commissioned officer. Despite his higher competency compared to a lay person, he has not opined as to the relevance of his continuous pain in relation to any of his disabilities, to include the basis of such knowledge. An adequate opinion establishing a nexus related to any of the Veteran's theories of entitlement would be of considerable assistance to the Board. In its duty to assist the Veteran, the Board has requested medical opinions as to the same theories of entitlement since February 2011: As to both claims for service connection, the Board has requested opinions as to whether any disability first manifested in, or was aggravated by, any active service; and, whether the Veteran's arthritis manifested within one year of separation of an active-duty service period. As to the service connection claim for a lumbosacral spine disability, the medical professional was to consider complaints of low back pain in February 1982 during active service, physical training with heavy gear during active service, and lifting medical gear during active service. The Board also requested an opinion clarifying conflicting medical evidence to include the presence and absence of degenerative disc disease between 2006 and 2014. In October 2013, the Board requested that the AOJ preferably find an orthopedist to make the respective assessments. As to the service connection claim for a bilateral foot disability, the medical professional was to consider a February 1984 football injury to the right foot during active service, complaints related to both feet in April 1985 during active service, complaints of left foot pain in October 1988 during active service, April 2005 treatment for plantar fasciitis, wearing boots on a continual basis during active service, and complaints of foot pain while stationed in Iraq. The Board notes that the Veteran did not serve in Iraq during a period of war specified in 38 C.F.R. § 3.2(i). See 38 C.F.R. § 3.317(e). In October 2013, the Board requested that the AOJ preferably find a podiatrist to make the respective assessments. An April 2021 addendum opinion was associated with the evidentiary record without examination. Despite numerous issues with the opinions, the Board's need for a remand remains the same: The medical professional improperly rejected the Veteran's reports of continuous pain since service in favor of an absence of contemporaneous medical evidence. Indeed, no discussion of the Veteran's alleged, continuous foot pain was noted at all. See April 2021 addendum opinion. In one instance, the opinion stated that "[t]he Veteran, per his service records, experienced episodic, acute, non-etiologically related episodes of back pain in service, which did not demonstrate evidence of chronicity." Id. (emphasis added). On its face, the author clearly ignored the Veteran's lay statements in favor of contemporaneous medical evidence. While conclusions that the Veteran's pain was episodic and acute assists the Board, no rationale was provided as to why such a conclusion was made given the Veteran's reports of continuous pain. Moreover, the author goes further to conclude that the Veteran's pain is non-etiologically related without demonstrated evidence of chronicity, but, again, these findings of fact and conclusions of law are without rationale to assist an actual factfinder to make such a conclusion. For the reasons discussed above, the AOJ did not comply with the Board's remand directives and remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his lumbosacral spine and bilateral foot disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in #1 above is completed, schedule the Veteran for an examination, with an orthopedist if possible, to determine the nature and etiology of his lumbosacral disability, to include spondylosis, retrolisthesis, and degenerative disc disease. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all lumbosacral disabilities present. For each identified disability, to include spondylosis, retrolisthesis, and degenerative disc disease, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's disability was incurred in, aggravated by, or is otherwise related to his time in either active-duty service or ACDUTRA? The examiner is to discuss complaints of low back pain in February 1982, physical training with heavy gear, and lifting medical gear during active service. The examiner must also opine as to the conflicting medical evidence related to the presence and absence of degenerative disc disease between 2006 and 2014. The examiner should consider a May 2007 private medical record showing a diagnosis of degenerative disc disease and a December 2005 private medical record identifying Schmorl's nodes in August 2005. The examiner must discuss the Veteran's competent reports of low back pain starting in service and continuing since. The examiner may not reject the Veteran's reports without adequate explanation for such rejection. B. Is it at least as likely as not that the Veteran's arthritis manifested within one year of his service discharge (i.e., either February 1989 or May 1991)? The examiner must discuss the Veteran's competent reports of low back pain starting in service and continuing since. The examiner may not reject the Veteran's reports without adequate explanation for such rejection. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. Again, if the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the development in #1 above is completed, schedule the Veteran for an examination, with a podiatrist if possible, to determine the nature and etiology of his bilateral foot disability, to include hallux valgus, plantar fasciitis, degenerative arthritis, and calcaneal spurs. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all bilateral foot disabilities present. For each identified disability other than pes planus, to include hallux valgus, plantar fasciitis, degenerative arthritis, and calcaneal spurs, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran's disability was incurred in, aggravated by, or is otherwise related to his time in either active-duty service or ACDUTRA? The examiner is to discuss a February 1984 football injury to the right foot, complaints related to both feet in April 1985, complaints of left foot pain in October 1988, April 2005 treatment for plantar fasciitis, wearing boots on a continual basis during active service, and complaints of foot pain while stationed in Iraq. The examiner must discuss the Veteran's competent reports of bilateral foot pain starting in service and continuing since. The examiner may not reject the Veteran's reports without adequate explanation for such rejection. B. Is it at least as likely as not that the Veteran's arthritis manifested within one year of his service discharge (i.e., either February 1989 or May 1991)? The examiner must discuss the Veteran's competent reports of bilateral foot pain starting in service and continuing since. The examiner may not reject the Veteran's reports without adequate explanation for such rejection. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. Again, if the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (Continued on the next page) If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.