Citation Nr: 21007329 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-05 490 DATE: February 9, 2021 ORDER Entitlement service connection for a right foot degenerative arthritis (claimed as right foot disorder) prior to January 17, 2016, is dismissed. REMANDED Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. FINDING OF FACT The Veteran’s claim for entitlement to service connection for a right foot disorder was granted by a November 2020 rating decision, with an effective date of January 16, 2016. CONCLUSION OF LAW The claim of entitlement to service connection for right foot degenerative arthritis is dismissed in light of the absence of a case or controversy. 38 U.S.C. § 7105; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1985 to September 1991. In June 2018, the Board denied the claims for service connection for bilateral foot disorders and a right ankle disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 Order, the Court vacated the Board’s June 2018 decision and remanded the matter for actions consistent with the terms of a Joint Motion for Remand (JMR). In April 2020, the Boarded remanded the issues for further development. Dismissal Entitlement to service connection for a right foot degenerative arthritis prior to January 17, 2016, is dismissed. It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, the Court lacks jurisdiction. See Bond v. Derwinski, 2 Vet. App. 376, 377 (1992); Mokal v. Derwinski, 1 Vet. App. 12, 15 (1990). In this case, the Veteran’s claim of service connection for a right foot disorder was granted in a November 2020 rating decision by the agency of original jurisdiction (AOJ.) As a general matter, the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). Therefore, there is no “controversy” or “issue” currently before the Board as the claim for service connection for a right foot disorder has been resolved in the Veteran’s favor. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (a case or controversy must exist in order to obtain appellate review). The Board notes that in a November 2020 supplemental statement of the case, the AOJ recharacterized the issue on appeal as entitlement to service connection for a right foot disorder prior to January 17, 2016, and has recertified the appeal to the Board. However, November 2020 rating decision granting service connection for a right foot disorder represented a full grant of the benefit sought, and the recharacterization of the issue by the AOJ essentially amounts to a claim of entitlement to earlier effective dates for the grant of service connection. The assigned effective date is a downstream element that needs to be separately appealed. In this case, the Veteran has not yet disagreed with the initial rating or effective date assigned following the grant of service connection a right foot disorder; therefore, that matter is not in appellate status. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). The Board points out that the Veteran may still appeal the downstream elements if he so desires, as he is still within the one-year appeal period following issuance of the November 2020 rating decision. In any event, the law provides that the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). As the Veteran’s appeal of entitlement to service connection for a right foot disorder has been granted, there remains no error of fact or law for the Board to address, and the appeal must be dismissed. REASONS FOR REMAND In its November 2020 decision, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the etiology of his diagnosed bilateral foot and right ankle disorders noting that the parties agreed in the JMR that the Board’s June 2018 denials were based upon inadequate VA examinations. The examiner was directed to record and consider the Veteran’s lay assertions regarding onset and symptomatology, as well as note the Veteran’s prior diagnosed feet and ankle disabilities. The Veteran underwent VA examination in July 2020. The Veteran reported that both his feet and ankles began to ache and hurt daily approximately 20 years prior to examination and that pain and other symptoms had gradually progressed since then. The examiner noted that the Veteran was diagnosed with left foot plantar fasciitis in 2014, left foot posterior plantar and retrocalcaneal spurs in July 2020, as well as right ankle tendonitis and achilles tendon tear in 2016. The examiner did not include the April 2013 diagnosis of arthropathy, gout, or pseudogout of the right ankle identified in the June 2014 Board decision and JMR nor did the examiner provide any rationale as to why the April 2013 diagnoses were inappropriate. Following examination, the examiner opined that the Veteran’s left foot and right ankle disorders were less likely than not related to an in-service event, injury, or illness. However, in offering these opinions, the examiner did not provide adequate supporting rationale. Indeed, the examiner provided unsupported conclusory opinions regarding in-service acuteness of left ankle and right foot complaints, as well as confusing and conflicting opinions regarding current diagnoses and their relation, if any, to the Veteran’s service. Specifically, the examiner stated that the Veteran’s current left ankle and right foot disabilities were likely multifactorial and that it would require speculation to concede that his current diagnoses were related to active service. Further, the examiner stated that a heavy object falling on the Veteran’s foot in 1990 would cause the Veteran’s diagnoses achilles tendon tear, plantar fasciitis, and calcaneal bone spurs. The Board finds the July 2020 VA examination insufficient for claims purposes. As such, a remand is required so that a new VA examination may be offered to the Veteran. When VA undertakes to provide an examination, it must ensure it is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, as the Veteran has been granted service connection for a right foot disability, on remand, the examiner should provide an opinion as to whether the Veteran’s claimed left foot and right ankle disorders are proximately due to and/or aggravated beyond their natural progression by his service-connected right foot disability. Finally, during a November 2019 VA medical appointment, the Veteran reported that he saw a private primary care physician within the community due to severe gout in his right ankle. As these records could be relevant, a remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the private primary care physician who has treated his right ankle gout. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed left foot and right ankle disorders. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of his claims file should be obtained, in lieu of an in-person or virtual examination, addressing the etiology of the Veteran’s claimed disability. The claims folder must be made available to and reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his disability. Upon review of the file, and interview and examination of the Veteran, the examiner is asked to respond to each of the following: (a.) Identify all current left foot and right ankle disabilities. The examiner is reminded that pain alone may constitute a disability if it causes functional impairment. The examiner should consider and comment on the April 2014 diagnosis of arthropathy, gout, or pseudogout of the right ankle. If the examiner finds that these diagnoses are inappropriate, (s)he should attempt to reconcile any conflicting findings. (b.) For each of the disabilities identified in (a), is it at least as likely as not (50 percent probability or more) the Veteran’s service-connected right foot disability proximately caused or aggravated beyond its normal progression the Veteran’s claimed right ankle or left foot disorders? (c.) If the answer to (b) is no, then, for each of the disabilities identified in (a), is it at least as likely as not (50 percent or greater probability) that such disability had onset in, or is otherwise related to the Veteran’s period of service, to include injury sustained by a 300 pound object falling on the Veteran’s right foot? 3. Readjudicate the appeal. If the benefits sought remain denied, issue the Veteran and his representative a supplemental statement of the case. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.