Citation Nr: 21021034 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-21 334 DATE: April 9, 2021 REMANDED Entitlement to service connection for a bilateral foot disability, to include as secondary to a service-connected disability is remanded. REASONS FOR REMAND The Veteran served active duty for training (ACDUTRA) in the U.S. Army National Guard from July 1985 to May 1986, and service in the U.S. Naval Reserves from May 1986 to May 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously before the Board in January 2019, when it was remanded for additional evidentiary development. 1. Entitlement to service connection for a bilateral foot disability, to include as secondary to a service-connected disability is remanded. Regrettably, another remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant’s claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). The Veteran currently seeks entitlement to service connection for a bilateral foot disability. In more recent statements, the Veteran contends she developed a bilateral foot disability during her military service. Specifically, the Veteran contends this condition was a result of jumping off a truck with heavy gear during pre-boot camp, in 1985. See May 2015 VA Form 9; see also December 2019 VA Examination Report. The Veteran has also contended that her bilateral foot disability is a result of cold weather exposure. See October 2009 VA Form 21-526, Application for Compensation or Pension. In January 2019, the Board determined that new and material evidence had been received to reopen the Veteran’s claim of entitlement to service connection for a bilateral foot disability and remanded the Veteran’s claim to afford her a VA examination for her bilateral foot disability. The Board also noted that the Veteran may have a low back condition related to her service, specifically noting the Veteran’s STRs that show a “back strain” diagnosis during service. See September 1988 STR. The Board found that a remand was necessary to determine if the Veteran’s has a current low back condition related to service, and, in turn, if an in-service low back pain has caused or aggravated her current bilateral foot condition. In accordance with the January 2019 Board remand, the Veteran was afforded a VA examination in December 2019. The VA examiner noted diagnoses of bilateral hammer toes, hallux valgus, and plantar fasciitis. The Veteran reported jumping off a truck with heavy gear on in pre-boot camp, approximately 1985, waking up the next day with bilateral foot pain, and being sent to sick bay. The Veteran further reported current bilateral foot pain and occasional swelling and that she was given orthotics and injections. The Veteran endorsed experiencing flare-ups, described as pain limiting her ability to walk. She also reported functional loss, limiting her ability to stand for long periods of time or walking more than 15 minutes. Following the examination, the VA examiner opined that the Veteran’s bilateral foot conditions is at least as likely as not incurred in or caused by the Veteran’s claimed in-service injury, event, or illness. In support of this opinion, the VA examiner reasoned that the onset of the Veteran’s hallux valgus was during service, documented in her service medical records. Furthermore, there is evidence of current, chronic, and continuous treatment and care. The VA examiner also opined that the Veteran’s back disability is less likely than not due to or the result of the claimed in-service injury, event, or illness. In support of this opinion, the VA examiner reasoned that the Veteran’s back condition in service was acute only and there is no evidence of chronicity of care. The Board notes that the VA examiner did not perform a physical examination of the Veteran to determine any current low back condition or its manifestations. The Board finds that the opinions of the December 2019 VA examiner are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). First, the foot disability VA examination contains contradictory information. The Board notes the VA examiner’s opinion that the Veteran’s bilateral foot disability is at least as likely as not incurred in or caused by the Veteran’s claimed in-service injury, event, or illness. The VA examiner supported this opinion by stating that the Veteran’s bilateral foot disability is documented in her service medical records. However, in the evidence section of the VA examination, the VA examiner noted that there was no foot trouble in the Veteran’s Report of Medical History and the first medical evidence cited to showing a bilateral foot disability was in April 2001, many years post-service. Review of the Veteran’s STRs shows normal feet evaluations and denials of foot trouble. See July 1985, December 1988, and October 1987 STRs. Furthermore, the Board notes that the December 2019 VA examiner based her back disability negative nexus opinion on the fact that the Veteran’s in-service back condition was acute, not chronic. The Board finds that the examiner failed to acknowledge the Veteran’s competent lay statements describing a back injury in 1987. See October 1988 STR. The VA examiner further failed to adequately address the Veteran’s STR noting that the Veteran presented with a back strain, chronic or recurrent. See September 1988 STRs. Accordingly, the Board finds that a new examination is required to determine the etiology of the Veteran’s bilateral foot disabilities and any current low back disability and its etiology. The matters are REMANDED for the following action: 1. Forward the Veteran’s claim to a qualified medical professional to obtain an addendum opinion as to the nature and etiology of the Veteran’s back condition. All pertinent evidence of record must be made available to and reviewed by the clinician. If the clinician determines that an examination is necessary, one should be scheduled. (a.) After reviewing the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back condition is causally related to the Veteran’s military service, to include the reported back injury and back strain diagnosis in the Veteran’s STRs. In providing this opinion, the examiner is asked to specifically address the Veteran’s lay statements concerning the onset of her symptomatology. The Veteran is competent to report symptoms capable of lay observation. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. After the above development is complete, regardless of the outcome of the opinion, that same medical professional is asked for an opinion addressing the nature of the Veteran’s bilateral foot disability. The examiner should respond to the following: (a.) Whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s bilateral foot disability is causally related to the Veteran’s military service, to include the reported jump from a truck. (b.) For any current bilateral foot disability found, is it at least as likely as not (50 percent probability or greater) that the Veteran’s foot disability was caused by or aggravated beyond its natural progression by her back disability? Please note that the examiner must address both causation and aggravation. Aggravation is defined as a permanent worsening beyond the natural progression of the disease. (Continued on the next page)   Again, all opinions must be supported by a clear rationale and reasoning behind the opinion. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.