Citation Nr: 21008482 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-33 212 DATE: February 17, 2021 REMANDED Entitlement to service connection for a right foot condition is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard from March 1984 to May 1984, and on active duty from February 1985 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2019. A transcript of the hearing is of record. The Board remanded this matter in December 2019 and September 2020. The Board finds that the RO did not substantially comply with the directives set forth in the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a right foot condition is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the September 2020 remand, a VA medical opinion was obtained for the Veteran’s right foot condition claim. The Board directed that the VA examiner consider the Veteran’s military occupational specialty (MOS) as he was on jump status. Additionally, the Board found the February 2020 VA examiner’s opinion to be inadequate because the examiner found that the records were silent for right foot conditions until 2014, and that there was no evidence of chronicity of care. However, the Veteran asserted that he had injury to his right foot around the same time as when he broke his left foot in service at the time of the examination. Further, the Veteran also stated that in 2007 his bilateral feet became consistently painful. The Board noted that in a March 2008 VA treatment record, the Veteran developed some joint pains after fracture right wrist, right ankle, and left foot in 1988. It was noted that the Veteran had numbness in 4th and 5th toes of the right foot constantly over the last couple of months. Therefore, the Board also directed the VA examiner to address this evidence and the issue of chronicity and continuity of symptoms. In a November 2020 VA opinion, the examiner opined that the Veteran’s right foot condition was less likely than not related to service. The examiner said that during service, the right foot condition was acute only. There was no evidence of chronicity of care and symptoms were subjective only. A nexus had not been established. The examiner said that the available medical records dated January 22, 1989, noted right foot pain. The separation exam dated March 31, 1992, did not note a right foot condition. There were no further medical evaluations noted for a right foot condition while on active duty. The examiner said that there was a lack of objective medical evidence confirming the chronicity of a chronic right foot condition while on active duty. The Board finds that the VA examiner did not consider the Veteran’s MOS, his account of being on jump status, or the Veteran’s lay statements and March 2008 VA treatment record, as there was no discussion of this evidence in the opinion. This is a Stegall violation. Additionally, the Board finds the VA examiner’s opinion inadequate as it is based on a lack of contemporaneous records. Lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”). Therefore, on remand, an additional VA opinion should be obtained to determine the etiology of the Veteran’s right foot condition. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an examiner different from the February 2020 and November 2020 VA examiners, or an appropriate substitute, to determine the etiology of the Veteran’s right foot condition. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right foot condition is related to service. A clear rationale must be provided for all opinions expressed. The examiner must discuss the Veteran’s statements, specifically that his MOS in service caused trauma to his right foot as he was on jump status, as well as his statements of injury in service and pain noted in treatment records as early as March 2008. The examiner must note that a lack of contemporaneous medical records does not serve as an “absolute bar” to the service connection claim and cannot be used as a rationale in explaining why the current disability is not related to service. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.