Citation Nr: 21010833 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-26 357 DATE: February 25, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for a bilateral feet condition is remanded. Entitlement to service connection for a right hand condition is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1956 to May 1958. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. In February 2019, the Board remanded the matters for obtaining VA examinations with medical opinions. In January 2020, the Board denied the Veteran’s service connection claims for a back condition, a bilateral feet condition, and a right hand condition. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court found that previous VA medical opinions obtained in November 2019 were inadequate, and there was no substantial compliance with the February 2019 Board remand order. In particular, the Court found that new or addendum opinions are required as the VA examiner failed to sufficiently address the Veteran’s October 2018 hearing testimony, provide a specific reason for her inability to provide etiology opinions, and include a reasoned medical explanation. Thus, in an October 2020 order, the Court granted a Joint Motion for Remand and vacated the Board's January 2020 decision and remanded the matters for readjudication. Now the matters are returned to the Board. 1. Back condition Since the February 2019 Board remand order, the Veteran underwent a VA examination for back conditions. In November 2019, the examiner noted the Veteran’s diagnosis of lumbosacral strain, but opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that no medical records are available regarding the Veteran’s back problem for over 40 years, and “it is not possible” to say whether there is a nexus between the Veteran’s current back condition and service. However, the examiner failed to explain why it is not possible to opine on a causal relationship between the Veteran’s current condition and claimed injury in service. In this regard, in the February 2019 Board remand directives, the examiner was asked to state whether the need to provide a speculate opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. Thus, the Board finds that there was no substantial compliance with the February 2019 Board remand order, and an addendum opinion on the etiology of the Veteran’s current back condition must be obtained prior to final adjudication of the matter. Stegall v. West, 11 Vet. App. 268, 271 (1998); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 2. Bilateral feet condition In November 2019, the VA examiner opined that the Veteran’s current bilateral feet condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that the Veteran has “several reasons to have pain in his feet including pes cavus, possible sciatica, severe peripheral artery disease, and a neuropathy due to chronic alcohol abuse.” However, the examiner failed to explain why it is less likely than not for the Veteran’s current feet condition is related to the claimed injury sustained after jumping into the sand pit in service. The Board provided in the February 2019 remand directive that the Veteran is competent to report his symptoms and history, and the examiner must provide an explanation for a rejection of the Veteran’s reports. Thus, the Board finds that there has not been a substantial compliance with the February 2019 remand order to obtain adequate medical opinion regarding the Veteran’s service connection claim for a bilateral feet condition. Stegall, 11 Vet. App., 271; McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Consequently, the Board finds that a remand of the matter is required to obtain an addendum medical opinion to adequately address the Veteran’s October 2018 testimony and include sufficient rationale for the opinion rendered. 3. Right hand condition Further, the November 2019 VA examiner noted the Veteran’s right hand instability diagnosis, but opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that “it is not possible” to state the Veteran’s right hand problem started while in the military, because it is possible that the right hand injury could have occurred at any time. As the examiner failed to explain why it is not possible to provide an opinion on a causal relationship between the Veteran’s current right hand condition and claimed in-service injury, the Board finds that there has not been a substantial compliance with the Board’s February 2019 remand order. Stegall, 11 Vet. App., 271. Thus, obtaining an addendum opinion on the matter is necessary prior to final adjudication. Accordingly, the matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) must obtain addendum opinions from the November 2019 VA examiner regarding the Veteran’s service connection claim for a back condition, a bilateral feet condition, and a right hand condition. If the November 2019 VA examiner is not available, the requested opinions with rationale should be rendered by another appropriate medical professional. If the examiner determines that new examinations are necessary, the AOJ should schedule them for the Veteran. The examiner should review the Veteran’s claims file and a copy of this REMAND order before rendering the requested addendum opinions. (a.) The examiner must opine whether the Veteran’s current back condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (b.) The examiner specifically is asked to address the Veteran’s October 2018 testimony of sustaining injuries to his back after jumping into a fire pit during his basic training and receiving infrared heating lamp treatments to his back in service. See October 2018 Hearing Transcript, at 2-3. The examiner is advised that the Veteran is competent to report his symptoms and history, and it must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (c.) The examiner must opine whether the Veteran’s current bilateral feet condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (d.) The examiner specifically is asked to address the Veteran’s October 2018 testimony of sustaining injuries to his feet after jumping into a fire pit during his basic training. See October 2018 Hearing Transcript, at 2-3. The examiner is advised that the Veteran is competent to report his symptoms and history, and it must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (e.) The examiner must opine whether the Veteran’s current right hand condition is at least as likely as not (50 percent or greater probability) related to his service or had its onset in service. (f.) The examiner specifically is asked to address the Veteran’s October 2018 testimony regarding an incident in service during which another military member accidently cut his right hand with a bayonet, but the suggested hand operation never happened before his separation. See October 2018 Hearing Transcript, at 5-7. The examiner is advised that the Veteran is competent to report his symptoms and history, and it must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. (g.) The Board emphasizes that the examiner must provide a complete written rationale for any opinion offered. Also, importantly, if the examiner cannot provide an opinion, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond based on given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. 2. After completing the above actions and any other necessary development, the issues on appeal must be readjudicated. If the claims remain denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate 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.