Citation Nr: 21021589 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-02 646 DATE: April 13, 2021 REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a back disability, to include as secondary to right ankle, left knee, and/or bilateral pes planus disabilities is remanded. Entitlement to service connection for a left knee disability, to include as secondary to right ankle and/or bilateral pes planus disabilities is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to September 1971. The claims have been remanded twice, most recently in July 2020. There has not been substantial compliance with the remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a right ankle disability is remanded. The right ankle claim must be remanded again because the January 2021 VA examination was inadequate. The Veteran submitted a statement that the examiner did not see the Veteran in person to properly assess his right ankle disability. Additionally, the examiner addressed that the Veteran’s ankle preexisted his service, but did not adequately address the Veteran’s statements of not being able to fully participate in marching during boot camp, or service treatment record of right ankle pain in November 1969. The examiner noted intermittent ankle pain, but that was “not beyond the natural progression” of the disability and that the Veteran’s records do not support the Veteran’s lay statements of chronicity. The examiner appears to impermissibly rely on the lack of records as evidence against the claim. Furthermore, the examiner does not identify which statements are not consistent with pain and self-care. Therefore, on remand, a new VA examination is warranted. Entitlement to service connection for bilateral pes planus is remanded. The bilateral pes planus must be remanded again because the January 2021 VA examination was inadequate. The examiner provided a negative opinion, based in part on noting that the records do not support the Veteran’s lay statements of chronicity. The examiner appears to impermissibly rely on the lack of records as evidence against the claim. Furthermore, the examiner does not identify which statements are not consistent with pain and self-care. Therefore, on remand, a new VA examination is warranted. Entitlement to service connection for a back disability, to include as secondary to right ankle, left knee, and/or bilateral pes planus disabilities is remanded. Entitlement to service connection for a left knee disability, to include as secondary to right ankle and/or bilateral pes planus disabilities is remanded. Entitlement to a TDIU is remanded. The back, left knee and TDIU claims are inextricably intertwined with the service connection claims for the right ankle and bilateral pes planus disabilities and adjudication of these issues will be deferred until the issue of service connection is decided. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examinations with an appropriate VA examiner, to obtain opinions as to the nature and likely etiology of the right ankle and bilateral pes planus disabilities. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the examiner is asked to answer the following questions: (a) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that any preexisting right ankle and bilateral pes planus disabilities were not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. The examiner is asked to review and discuss the Veteran’s February 2021 statement of his right ankle and pes planus creating difficulty for him to be able to march with the rest of the soldiers during boot camp. (b) If the answer to (a) is no for any right ankle or pes planus disability, is it at least as likely as not that the right ankle or pes planus disability had its onset in service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to 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) and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the inextricably intertwined issues on appeal to include the Veteran’s back and left knee disability claims for service connection and TDIU. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.