Citation Nr: 21008484 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-36 064 DATE: February 17, 2021 REMANDED Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a bilateral shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1991 to June 1994, and from October 2003 to June 2004, with an additional period of active duty for training from September 1990 to December 1990. This case comes on appeal of a May 2014 rating decision. These matters were previously before the Board in March 2019. At that time, the Board remanded the claims to afford the Veteran new VA examinations addressing the Veteran’s entire disability picture as well as all theories of entitlement. 1. Entitlement to service connection for a left foot condition is remanded. 2. Entitlement to service connection for a right foot condition is remanded. Whenever VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). An adequate medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, a thorough and contemporaneous medical examination must consider the records of prior medical treatment. Nieves-Rodriguez, 22 Vet. App. at 304. The examiner providing the report or opinion must be fully cognizant of the claimant’s past medical history in order to sufficiently evaluate the claimed disability. Id. Thus, medical examinations that are based upon an incomplete review of relevant medical records are inherently inadequate. Id. at 304. Here, in March 2019, the Board previously remanded the Veteran’s claims for left and right foot conditions to afford the Veteran new examinations. In doing so, the Board noted that the Veteran had undergone VA examinations in 2008 and 2014. However, since the 2008 examination, the Veteran had been diagnosed with bilateral plantar fasciitis and bursitis. Moreover, the 2014 examination only addressed whether the Veteran’s left and right foot conditions were secondary to service in Southwest Asia. In light of the fact that the Veteran’s service treatment records documented injuries to the Veteran’s right foot and ankle, as well as complaints of pain in both feet, a new examination was necessary to determine whether the Veteran’s current left and right foot disabilities were caused by or incurred in service. In April 2019, the Veteran underwent a new VA foot conditions examination. There, the examiner identified diagnoses of bilateral plantar fasciitis and bilateral calcaneal spurs. The examiner opined that it was less likely than not that these disabilities were related to service. Regarding the Veteran’s right foot, the examiner noted a 1992 incident in which the Veteran complained of right foot pain after a sand box fell on the dorsal part of his right foot. The examiner then stated that there were no further complaints or continuity of treatment during the rest of the Veteran’s active duty service people from February 1991 to June 1994, or within two years of discharge. The examiner also noted that the Veteran re-enlisted in the United States Army from 2003 to 2004 and was silent for complaint, evaluation, or treatment of the claimed right foot condition until the present. Regarding the Veteran’s left foot, the examiner stated that there was evidence that the Veteran complained of left foot pain in 1992 and that the Veteran was evaluated and treated at the time. The examiner then stated that there were no further complaints of left foot pain during the rest of the Veteran’s active duty service or within five years after discharge. Hence, the examiner continued, the condition was acute and transient and was resolved with treatment given at the time. Furthermore, the examiner contended, the Veteran’s subjective complaints of left foot pain at the time of the evaluation were related to his “actual left foot condition of calcaneal spurs” that was not related to active duty service, but part of the normal aging process. First, the Board observes that the examiner did not provide an accurate description of the history of the Veteran’s complaints, despite the Board requesting that the examiner address specifically enumerated events in the Veteran’s service treatment records. The incident in which the Veteran had a sand box fall on his right foot occurred in March 1992. In April 1992, treatment records show that the Veteran fell on his right ankle. Three days later, the Veteran was seen for followup of a right foot sprain and stated that the pain had spread to the bottom of his foot. In July 1992, the Veteran complained of left foot instep arch pain on normal weightbearing that had been ongoing for three days after stepping in a hole. He was noted to have mild tenderness on the medial aspect of the left arch. In January 1993, the Veteran reported falling off a trailer and complained of pain to his right side, with specific areas of pain not identified by the treating medical provider. In August 1993, the Veteran complained of pain in both feet that increased while walking and standing for a long period of time. In the Veteran’s April 1994 discharge examination, the Veteran checked “Yes” to foot trouble and was noted to have a history of a chip fracture of the right foot. Thus, the examiner’s claims that there were no further complaints or continuity of treatment following the Veteran’s initial right and left foot injuries are incorrect. Indeed, the Veteran appears to have had complaints and treatment related to his bilateral feet throughout much of his first period of service. Therefore, the examiner appears to have evaluated the Veteran’s claimed right and left foot disabilities without being fully cognizant of the Veteran’s medical history, rendering the examination inadequate. Second, the examiner provided conclusions regarding both the right and left feet without offering sufficient medical rationale in support of those conclusions. As was noted above, the examiner erroneously reported that there were no further complaints of right or left foot pain during service. The examiner also reported that there were no complaints of right foot pain within two years after service and left foot pain within five years after service. To the extent that this information is medically significant, the examiner did not provide any explanation as to why that is so. The Board notes that the Veteran is competent to report his history of foot pain symptoms. The mere absence of contemporaneous treatment records is not a sufficient basis for a negative nexus opinion without an explanation of why that absence is relevant. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007); Stefl, 21 Vet. App. at 124. Furthermore, the examiner effectively dismissed the Veteran’s current left foot pain as solely related to calcaneal spurs, which the examiner stated was not related to service. The examiner did not provide any explanation for this conclusion. Accordingly, for all of the foregoing reasons, the April 2019 foot conditions examination was not adequate. On remand, the Veteran should be afforded a new examination based on a full review of the Veteran’s medical history and in which the examiner provides complete medical rationale for all conclusions reached. 3. Entitlement to service connection for a bilateral shoulder condition is remanded. In its March 2019 decision, the Board remanded the claim for entitlement to service connection for a bilateral shoulder condition to afford the Veteran a new examination. Specifically, the Board noted that the Veteran had undergone a May 2014 shoulder examination, but at that time the examiner only addressed whether the Veteran’s diagnosed bilateral shoulder tendinopathy was secondary to service in Southwest Asia. The examiner had not addressed whether the disability was causally related to the Veteran’s service on a direct basis, to include the Veteran’s documented in-service incident in which he fell from a military vehicle. Further, the Board observed that the Veteran had complained of right shoulder pain due to the use of a cane, secondary to a service-connected lumbar spine condition. Thus, for the right shoulder, the Board instructed that the new examination must also address whether the disability was caused or aggravated by the Veteran’s service-connected conditions. In April 2019, the Veteran underwent a VA examination. At that time, the examiner noted diagnoses of bilateral shoulder tendinopathy and right shoulder acromioclavicular (AC) joint degenerative joint disease by x-ray. The examiner opined that it was less likely than not that the Veteran’s shoulder disabilities were related to active military service. As explanation, the examiner only stated that the Veteran’s service treatment records were silent for shoulder pain, injury, event, complaint, or treatment regarding the shoulders, and that the condition dates to recent years while not on active military service. First, the Board observes that the examiner did not provide any medical rationale in support of the conclusory opinion, but instead only recited facts from the record. The Board notes that the January 1993 service treatment records, subsequent to the Veteran’s fall, only report claims of pain to the right side but do not specify a part of the body. The Veteran has testified that his focus was primarily on his low back pain at the time of the incident because that was what caused him the most trouble, but that he has experienced continuous shoulder pain since that time. To the extent that the examiner finds the lack of in-service treatment or complaints to be medically significant in forming a conclusion, a reasoned explanation must be given as to why that is the case. Additionally, the examiner did not address at all whether the Veteran’s right shoulder disabilities were caused or aggravated by a service-connected condition, to include the use of a cane secondary to a lumbar spine disability. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, there is not substantial compliance with the Board’s March 2019 remand instruction regarding evaluation for secondary service connection. On remand, the Veteran should be afforded a new shoulder examination. Regarding service connection on a direct basis, the examiner should fully address the Veteran’s contentions regarding his claimed in-service injury and history of symptoms, and should provide complete medical rationale for all conclusions reached. The examiner should also provide an opinion as to whether the Veteran’s right shoulder disability is caused or aggravated by a service-connected condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the bilateral feet. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should clearly identify all current disabilities of the bilateral feet. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should consider and comment as appropriate on: - The Veteran’s March 1992 right foot injury incurred when a box fell on his foot - The Veteran’s April 1992 right ankle sprain after a fall that resulted in documented foot pain with follow-up examination - The Veteran’s July 1992 complaints of left foot instep arch pain on normal weightbearing after stepping in a hole - The Veteran’s in-service complaints of bilateral foot pain, as documented in his service treatment records in August 1993 - The Veteran’s January 1993 fall from a trailer resulting in pain on the right side - The Veteran’s April 1994 discharge examination on which he checked “Yes” to foot trouble and was noted to have a chip fracture of the right foot The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 2. Schedule the Veteran for a VA examination of the bilateral shoulders. The examiner should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The examiner should clearly identify all shoulder disabilities. Then, with respect to each such diagnosed disability, the examiner should render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had onset in, or is otherwise related to service. In doing so, the examiner should address the Veteran’s contentions regarding his January 1993 fall from a military vehicle and his competent statements regarding his subsequent history of shoulder symptoms. The examiner should also render an opinion as to whether it is at least as likely as not that the Veteran’s right shoulder disabilities were caused or aggravated by a service-connected disability, to include the use of a cane, secondary to a lumbar spine disability. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed report. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. 3. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.