Citation Nr: 21012431 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 12-14 364A DATE: March 4, 2021 REMANDED Entitlement to service connection for bilateral foot disorders is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from April 1976 to October 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, CA. In August 2017 and October 2020, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. The Veteran submitted an April 2010 claim for “both feet heel spurs.” See VA 21-526, 4/9/2010, pg 7. The claim was previously characterized as bilateral heel spurs, toe operation, and subsequently as left and right toe disorder. The record reveals the Veteran has been diagnosed with several foot disorders throughout the appeals period and service treatment records indicate he received treatment for varying conditions. Therefore, the Board finds it appropriate to recharacterize the claim as displayed on the title page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (what constitutes a claim cannot be limited by a lay veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s October 2020 remand directed the RO to obtain an addendum to determine the nature and etiology of his toe condition. The examiner was asked to opine on each of the Veteran’s diagnosed foot conditions and discuss the clinical significance of the Veteran’s in-service foot complaints and treatment and address his lay contentions. An in-person examination was provided in December 2020, however, remand is necessary to address deficiencies and further develop the claim. As such, substantial compliance was not achieved. Id. at 271. 1. Entitlement to service connection for left and right foot conditions is remanded. The Veteran contends he has current left and right foot disabilities subject to service-connection. Specifically, he asserts he had problems with his feet in-service that began during basic training when his boots did not support his feet and rubbed them such that they became bloody and raw and he subsequently developed calluses. See VA 21-526, 4/9/2010, pg. 5/10. He reports X-rays revealed stress fractures and heel spurs and he was given a 30-day profile. See VA 21-4142, 6/18/2010, pg 2. He also reports his calluses now become infected since he has developed diabetes mellitus II, creating ulcers under his toes, and he continues to have swelling necessitating less walking and standing. See Correspondence, 9/8/2010. The RO denied the Veteran’s claim for heel spurs and toe operations in April 2011 due to a lack of evidence of a relationship to active service. However, the Board found this rating decision failed to consider pertinent medical and lay evidence of record and remanded the claim for a VA examination. Remand, 8/11/2017, pg. 2/5. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran was given a VA examination in October 2017. The October 2017 examiner opined the Veteran’s condition was less likely than not related to his military service because there was no evidence of complaints of toe pain during active duty and his separation exam did not indicate concerns. See C&P, 10/24/2017. However, the Board found the examiner relied on factual inaccuracies in concluding the Veteran’s service was “medically non-problematic” despite numerous records for complaints, diagnosis, and treatment for several foot disorders. BVA Decision, 10/21/2020, pg 6/8. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board directed an examiner to provide an addendum opinion on each of the Veteran’s diagnoses and discuss the clinical significance of the Veteran’s in-service foot complaints and treatment and fully address his lay contentions. Following remand, the Veteran was given an in-person VA examination in December 2020. However, the Board concludes the examination is not adequate for compensation purposes and does not substantially comply with the Board’s remand instructions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner notes the Veteran’s diagnoses as: left and right toe disorder, left and right calluses, left and right hallux valgus, left and right hyperkeratotic lesions and provides an opinion for each condition. See C&P DBQ, 12/23/2020. For each condition, the examiner relies on an absence of in-service records of the specific diagnosis to conclude the current condition is not related to service. The examiner also concludes there is no evidence confirming the Veteran experienced blisters, bunions, or lesions as he stated. See C&P, 12/23/2020, pg 2/4. Although he notes the Veteran’s May 1976 stress fracture, pain, and swelling in the Achilles and calcaneal area, he does not address how the in-service injury does or does not relate to any of the Veteran’s current conditions. The examiner provided a conclusory rationale based on a lack of in-service diagnosis and without a medical basis or explanation. Additionally, this fails to give consideration to the Veteran’s credible and competent lay statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concludes remand is necessary to obtain an opinion that fully addresses the evidence of record, the Veteran’s contentions, and relevant medical support for its conclusions. The Board notes the RO was unable to obtain a full copy of the Veteran’s service treatment records. See VA Memo, 9/24/2010. When service medical records are presumed destroyed the Board’s obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O’Hare v. Derwinski, 1 Vet. App. 365, 367, (1991). The Veteran was able to locate and submit partial service records in November 2010. STR, 11/1/2010. Thorough review of the available records corroborates the Veteran’s lay testimony and establish he suffered an in-service injury. They reveal that he was seen by the podiatry clinic four times in May 1976 with notations of edema. See STR, 11/1/2010, pg 11/14. An emergency room record from the following week indicate the Veteran complained of swollen feet, and tenderness and swelling are noted bilaterally to the Achilles. Pg. 8/14. X-ray imaging shows bilateral stress fractures. Pg. 1/14. Additional visits to the podiatry clinic in May and June 1976 are included with reference to the Veteran’s heels. Pg. 9/14. These events are not discussed by the examiner and must be taken into consideration in determining whether a nexus exists to his current disabilities. Further, at the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304 (b). Here, there is no entrance examination of record and the Veteran is presumed sound at entry. The Veteran has indicated he received post-service treatment from the Loma Linda VA since 1990. However, treatment records obtained only date to 1999. Review indicates the Veteran was treated for: calluses of the great toe in October 2000, July 2002, and April 2007; hyperkeratosis in November 2003 and February 2008; plantar ulcers in April 2007, October 2007, January 2008 and March 2011; among others. See MTR- Government, 4/13/2011. The Veteran asserts he developed the calluses on his feet while in service after he was instructed to pop the blisters and sores he had developed. He states that he did not encounter problems with these calluses until years following separation due to his diabetes mellitus II. Form 9,6/21/2012. He also indicates he encounters swelling in his heels such that he stays off his feet and cannot stand or walk for prolong periods. See Correspondence, 9/8/2020. As there is indication of several foot complaints by the Veteran while on active duty, an examiner must consider and opine on any potential relationship to his current disabilities. The Board regrets further delay in adjudicating the claim; however, remand is warranted to obtain adequate etiological opinions. A medical opinion on the existence of any potential relationship is needed, accompanied by a fully reasoned explanation that considers the evidence, Veteran’s lay statements, and relevant medical literature. Accordingly, these matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician concerning the etiology of the Veteran’s left and right foot disorders. If available, a specialist in podiatry is preferred. The Veteran’s claims file must be made accessible to the designated professional for review. A complete rationale for any opinion expressed should be provided. For each currently diagnosed bilateral foot disorders, to include great toe pain status post bunionectomy, calluses, hallux valgus, and hyperkeratotic lesions, the examiner should provide an opinion on the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the foot disability is related to service? The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. In doing so, the examiner must discuss the clinical significance, if any, of: (b.) the Veteran’s foot complaints, treatment, and diagnoses found in the STRs dated throughout May and September 1976, and (c.) the Veteran’s lay reports that his boots rubbed his feet raw during boot camp, he suffered foot injuries in basic training, he had hard calluses during service, and the existence of these calluses have created his current disabilities as provided in the various statements as summarized in the Remand above. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.