Citation Nr: 21015196 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-01 571 DATE: March 16, 2021 REMANDED Entitlement to service connection for a right foot disability other than pes planus, to include foot strain and calluses, is remanded. Entitlement to service connection for a left foot disability other than pes planus, to include foot strain and calluses, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1974 to June 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In May 2015, the Veteran testified at a Board hearing before a Veterans Law Judge sitting in Washington, D.C. A transcript of that hearing has been associated with the record. In May 2018, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. In May 2020, after taking further action, the AOJ granted service connection for bilateral pes planus. The prior denial of service connection for disabilities of the feet other than pes planus (to particularly include foot strain and calluses) was confirmed and continued and those matters were returned to the Board. In January 2021, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in May 2015 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but did not respond. As stated in the January 2021 letter, in the absence of a response, the Board will assume that the Veteran does not wish to appear at another hearing. 1. Entitlement to service connection for a right foot disability other than pes planus. 2. Entitlement to service connection for a left foot disability other than pes planus. Although the Board regrets the additional delay, further development is necessary to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When this case was remanded in May 2018, the Board requested that an addendum medical opinion be obtained with respect to the disabilities of the Veteran’s feet. In so doing, the examiner was directed to “comment on the service treatment records showing pain and swelling of the feet” and to consider and discuss “the Veteran’s competent assertions as to the nature, onset, and continuity of symptoms.” In a July 2018 opinion, a private podiatrist opined that the Veteran had a current complaint of bilateral foot pain and that “it is at least as likely as not that the condition became worse during military service.” Unfortunately, the provider did not indicate whether the condition(s) at issue worsened during service beyond natural progression and did not provide a rationale to support his conclusion. Accordingly, the statement in insufficient to support an award of service connection. The AOJ obtained an addendum medical opinion in April 2020. The examiner stated that there was no evidence that the claimed conditions (foot strain and calluses) were present during service. In so doing, the examiner did not discuss the relevant service treatment records or the Veteran’s reports of chronicity of symptoms since service. Because the opinion did not directly address the questions posed in the prior remand, further development is required. In addition, in light of the fact that service connection has now been established for bilateral pes planus, an opinion should be obtained as to whether the Veteran has additional, distinct disabilities of the feet and, if so, whether they are secondary to the pes planus. These matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his feet. The examiner should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should identify any foot disabilities the Veteran has had (in addition to pes planus) at any time since October 2010 (when he filed his claim for service connection), to include any foot strain, calluses, and/or plantar fasciitis. Then, with respect to each such disability, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the disability had its onset in, or is otherwise attributable to, the Veteran’s period of active service. In so doing, the examiner must comment on the service treatment records showing pain and swelling of the feet and may not rely on the fact that post-service medical records fail to document any foot problems for many years following service. The examiner must also consider and discuss all relevant medical evidence and lay assertions, to include the Veteran’s competent assertions as to the nature, onset, and continuity of symptoms, to include his assertions to the effect that he has experienced foot problems since service and has self-treated his feet over the years, to include with Epsom salts. If lay assertions in any regard are discounted, the clinician should clearly so state, and explain why. If it is the examiner’s opinion that it is unlikely that an identified disability of the feet (other than pes planus) had its onset in, or is otherwise attributable to, service, the examiner should offer a further opinion as to whether it is at least as likely as not that such disability has been (a) caused or (b) aggravated (i.e., worsened beyond natural progression) by the Veteran’s service-connected pes planus. If any of the Veteran’s reported foot problems, such as strain and/or calluses, are manifestations of pes planus, and do not constitute a stand-alone disability, that fact should be noted as well. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.