Citation Nr: 21011438 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-04 571 DATE: March 1, 2021 REMANDED Entitlement to service connection for right foot bone spur, to include as secondary to right foot strain, is remanded. Entitlement to a rating in excess of 10 percent for right foot strain is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified before a Veterans Law Judge who no longer works at the Board in that capacity. A letter was sent to the Veteran in October 2020, stating that at his discretion, the Veteran may request another hearing within 30 days. As there was no response, the Board assumes another hearing is not requested. In December 2019, the Board denied service connection for the right foot bone spur and remanded the claim for an increased rating for his right foot strain. The Veteran timely appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s denial of service connection and remanded for further development; the increased rating claim was not disturbed. Specifically, the Court found that the Board relied on an inadequate medical opinion as it did not address direct service connection and did not address whether his right foot bone spur was aggravated by his right foot strain. See JMPR, page 2. The claim was thus returned to Board for development as indicated in the JMPR. The increased rating claim for right foot strain was not within the Court’s jurisdiction because it was remanded by the Board. Bone Spurs The Veteran contends that his right foot bone spur is directly related to service, and as secondary to his service-connected right foot strain. See July 2012 Statement in Support of Claim; January 2016 VA Form 9. As noted in the JMPR, the July 2012 VA compensation examination report was inadequate because it did not provide a medical opinion for the claimed direct service connection and did not address whether the right foot bone spur was aggravated by his right foot strain. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, a remand is warranted to obtain additional VA medical opinions that address both the questions of direct service connection for bone spurs and aggravation of a service-connected disability. Increased Rating Claim The Veteran asserts that his right foot strain increased in severity and warrants a higher rating. See March 2019 Hearing Transcript, pages 4-7. As indicated above, the Board remanded the issue of entitlement to an increased rating for a right foot strain in December 2019 because the Veteran testified as to worsening right foot symptoms since his last VA compensation in 2012. The Board requested that a VA compensation examination be conducted to assess the current severity of the right foot strain. Although the RO initiated a VA examination request, the Veteran has yet to undergo the examination due to a scheduling problem. Recent correspondence indicates rescheduling is in process. Therefore, the claim for increased rating of the right foot strain is remanded again for development consistent with the directives of the December 2019 remand. The matters are REMANDED for the following action: 1. Ensure that the Veteran’s electronic file contains his updated contact information. 2. Obtain another medical opinion from an appropriately qualified examiner to determine the etiology of the Veteran’s right foot bone spur. The claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. After a review of the claims file, the examiner is asked to respond to the following: a) Whether the Veteran’s right foot bone spur diagnosed during the appeal period (see private podiatrist correspondence) is as likely as not (50 percent probability or greater) related to service, to include military training in service? **In doing so, specifically address (i) the Veteran’s lay statements in the March 2019 Board Hearing that he felt grinding pain while in service and after service; and (ii) the May 2019 private etiology opinion from Dr. J.S.N. b) Whether the Veteran’s right foot bone spur is proximately due to his service-connected right foot strain; and, c) Whether the Veteran’s right foot bone spur is aggravated by his service-connected right foot strain. 3. Provide the Veteran with a VA examination to consider the nature and extent of the service-connected right foot strain. The examiner should review the Veteran’s electronic claims file, to include a copy of this remand. After examining the Veteran, the examiner is asked to: a) Provide a full description of the right foot strain and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, describe the severity of the Veteran’s right foot strain by indicating whether the condition is moderate, moderately severe, or severe. b) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement without speculation, 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 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). A complete rationale must be provided for any opinion offered. 3. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, 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.