Citation Nr: 21014707 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-22 091A DATE: March 15, 2021 REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for pancreatitis is remanded. Entitlement to service connection for breast cancer and any residuals thereof is remanded. Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran had active military service from April 1981 to April 1984 and April 2006 to May 2007. These matters come before the Board of Veterans’ Appeals (Board) on appeal from June 2015 and July 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran and her brother testified at a hearing before the undersigned Veterans Law Judge. This case was previously before the Board in October 2019, at which time the issues currently on appeal were remanded for additional development. As an initial matter, the Board notes that not all of the Veteran’s service treatment records (STRs) have been associated with the record. Namely, the December 2019 VA examiner referenced findings from a February 1981 enlistment examination. Therefore, all outstanding STRs should be identified and obtained upon remand. 1. Bilateral Foot Disability The Veteran has contended that her bilateral foot disability is related to her active service. Specifically, she testified that a pre-existing flatfoot condition was aggravated by wearing boots and running during service. Furthermore, she reported that she first experienced symptoms associated with a bilateral foot disability during service and that those symptoms have continued since that time. STRs were silent for any complaints, treatment, or diagnosis of a bilateral foot disability during the Veteran’s first period of active service. Between the Veteran’s first and second periods of active service, she was diagnosed with congenital brachy-metatarsalgia, pes planus, plantar callosities, hallux valgus deformity, and tinea pedis. While serving her second period of active service, the Veteran was diagnosed with soft tissue foot pain after stepping into a hole during physical training in 2007. In December 2019, a VA examiner opined that the Veteran’s bilateral pes planus was clearly and unmistakably not aggravated beyond its natural progression by her active service. The examiner explained that the Veteran was not diagnosed with pes planus until a prior December 2010 VA examination. She found no objective evidence to support that the Veteran’s pes planus existed prior to service as a February 1981 enlistment examination and overall STRs were negative for pes planus. The Board finds that the December 2019 VA examination is inadequate for adjudication purposes. In this regard, the examiner’s rationale did not consider all bilateral foot disabilities of record in rendering an opinion. As such, a remand is warranted for an additional VA examination to determine the nature and etiology of any currently present bilateral foot disability. 2. Pancreatitis The Veteran has asserted that her pancreatitis is secondary to her service-connected gall bladder removal with residuals. Specifically, she stated that a gallstone was found blocking the pancreatic duct after her gallbladder removal. An August 2012 VA CT scan uncovered a stone in the Veteran’s pancreatic duct. A March 2017 VA MRI showed that the stone was lodged. In December 2019, a VA examiner diagnosed the Veteran with gallstone pancreatitis and opined that it was less likely as not related to her active service. Because the examiner did not provide an etiological opinion for service connection on a secondary basis, an addendum medical opinion is warranted. 3. Breast Cancer The Veteran has reported that her breast cancer is related to her second period of active service. Specifically, she testified that she discovered lumps in her breasts from fibrocystic disease. A February 1994 bilateral mammogram and left breast ultrasound revealed bilateral fibrocystic disease without evidence of carcinoma and a palpable mass in the left breast. In September 2009, the Veteran complained of a new lump in her left breast. She was diagnosed with right breast cancer in November 2014. In December 2019, a VA examiner opined that the Veteran’s right breast cancer was less likely than not related to her active service. The examiner explained, in part, that the medical literature did not support a nexus between a left breast cystic disease and right breast cancer. The Board finds that the December 2019 VA medical opinion is inadequate for adjudication purposes. In this regard, the examiner’s rationale did not address all medical evidence of record, to specifically include the Veteran’s right fibrocystic disease in 1994. Therefore, a remand is warranted for an addendum medical opinion. 4. Back Disability The Veteran was last afforded a VA examination for her back disability in December 2019. However, the Board finds that the development conducted does not adequately comply with the October 2019 Board remand directives. Specifically, the examiner failed to provide the requisite aggravation opinion in connection the Veteran’s second period of active service. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an addendum VA medical opinion should be obtained upon remand. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding service records, to specifically include the February 1981 enlistment examination, and associate them with the claims file. 2. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present bilateral foot disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should first identify all bilateral foot disabilities present during the pendency of the claim, or proximate thereto. Then, for each bilateral foot disability identified, the examiner should determine whether the Veteran’s bilateral foot disability is a congenital defect, or a disease. For VA purposes, the term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, “defects” are defined as structural or inherent abnormalities or conditions that are more or less stationary in nature. The examiner must offer the opinion in the terms as listed above. a) For any identified bilateral foot disability considered a congenital defect, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that it was subject to, or aggravated by, a superimposed disease or injury during active service, which resulted in additional disability. b) For any identified bilateral foot disability considered a disease or the result of injury, the examiner should state whether the disability clearly and unmistakably preexisted the Veteran’s service and if so, whether such disability was clearly and unmistakably NOT aggravated by active service. In responding to that question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran’s lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. c) For any identified bilateral foot disability considered a disease or the result of injury, that did NOT clearly and unmistakably preexist the Veteran’s service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability is etiologically related to his active service. The rationale for all opinions expressed must be provided. 4. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran’s pancreatitis. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s pancreatitis was caused or aggravated (chronically worsened) by her service-connected gall bladder removal with residuals. The rationale for all opinions expressed must be provided. 5. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of the Veteran’s breast cancer and residuals thereof. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s breast cancer and residuals thereof are etiologically related to her active service. The rationale for all opinions expressed must be provided. 6. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present back disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on the review of the record, the examiner should first identify all back disabilities present during the pendency of the claim, or proximate thereto. Then, for each back disability identified, the examiner should state whether a back disability clearly and unmistakably existed prior to the Veteran’s second period of active service. In responding to that question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran’s lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. a) If an identified back disability clearly and unmistakably existed prior to the Veteran’s second period of active service, the examiner should provide an opinion as to whether the back disability was clearly and unmistakably NOT aggravated by her second period of active service. b) If an identified back disability did NOT clearly and unmistakably exist prior to the Veteran’s second period of active service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the back disability is etiologically related to her first or second period of active service. The rationale for all opinions expressed must be provided. 7. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 8. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.