Citation Nr: 21022360 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-23 656 DATE: April 15, 2021 REMANDED Service connection for a right tibia disability is remanded. Service connection for a left tibia disability is remanded. Service connection for a right ankle disability is remanded. Service connection for a left ankle disability is remanded. Service connection for a left foot disability, other than claw foot, metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Marine Corps from January 1996 to January 1997. These matters are on appeal from a May 2010 rating decision. The Veteran’s claims for service connection for residuals from a stress fracture to the left and right tibia have been recharacterized as a left and right tibia disability, to include residuals of a stress fracture. The Veteran’s claims for service connection for residuals from a stress fracture to the left and right ankle have been recharacterized as a left and right ankle disability, to include residuals of a stress fracture. The Veteran’s claims for service connection for residuals from a stress fracture to the left cortical third and fourth metatarsal have been recharacterized as a left foot disability, other than claw foot, metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease, to include residuals of a fracture to the left cortical third and fourth metatarsal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).    These claims were remanded by the Board in February 2020 to attempt to obtain additional records and to afford the Veteran additional VA examinations.  The Board will discuss the compliance of the Agency of Original Jurisdiction (AOJ) with its instructions below.   In its February 2020 decision, the Board also remanded the issues of entitlement to increased ratings for claw foot with metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease of the bilateral feet, residuals of stress fractures of the right and left proximal femur with right and left hip flexor strain, and to a total disability rating due to individual unemployability (TDIU) for the issuance of a Statement of the Case (SOC). The Agency of Original Jurisdiction (AOJ) did so in April 2020 and the Veteran has not perfected an appeal.  There was substantial compliance with the remand directives with regard to those issues, which are no longer before the Board.  See Stegall v. West, 11 Vet. App. 268 (1998).  1. Service connection for a right tibia disability is remanded. 2. Service connection for a left tibia disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was most recently afforded a VA examination with regard to his tibias in June 2020. The VA clinician’s opinion with regard to the left tibia was based on a lack of evidence of chronicity of treatment and the “subjective” nature of the Veteran’s symptoms. The opinion with regard to the right tibia focused on whether the Veteran sustained a stress fracture to the right tibia during his active duty service as opposed to the broader question of whether a current disability is etiologically related to active duty service. These are not adequate rationales. For these reasons, a remand for new medical opinions is warranted. 3. Service connection for a right ankle disability is remanded. 4. Service connection for a left ankle disability is remanded. The Veteran was most recently afforded a VA examination with regard to his ankles in June 2020. The opinions with regard to each ankle focused on the diagnosed ankle disabilities during active duty service being tendonitis, not stress fractures. This rationale does not address the broader question of whether a current disability is etiologically related to active duty service. These are not adequate rationales. For these reasons, a remand for new medical opinions is warranted. 5. Service connection for a left foot disability, other than claw foot, metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease, is remanded. The Veteran was most recently afforded a VA examination with regard to his feet in June 2020. The VA clinician’s opinion was based on a lack of evidence of chronicity of treatment and the “subjective” nature of the Veteran’s symptoms. This is not an adequate rationale. For these reasons, a remand for a new medical opinion is warranted. In addition, in a March 2014 rating decision, the AOJ granted service connection for multiple bilateral foot disabilities, including metatarsalgia; the opinion on remand should include an opinion as to whether the Veteran has a left foot disability for which service connection has not already been granted. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s right or left tibia disabilities. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the right or left tibia, he or she must consider pain to constitute a disability if it has caused functional impairment during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 22, 2009. The clinician must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right or left tibia disabilities had their origin during active duty service or are related to the Veteran’s active service. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s right or left ankle disabilities. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the right or left ankle, he or she must consider pain to constitute a disability if it has caused functional impairment during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 22, 2009. The clinician must provide opinions as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right or left ankle disabilities had their origin during active duty service or are related to the Veteran’s active service. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s left foot disability, other than claw foot, metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a) Whether the Veteran has had a left foot disability other than claw foot, metatarsalgia, hallux valgus, hammer toes, and degenerative joint disease during the period on appeal. The clinician is advised that VA received the Veteran’s claim on April 22, 2009. b) If the answer to a) is yes, whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left foot disability, other than those for which service connection has already been granted, had its origin during active duty service or is related to the Veteran’s active service. The rationale for any opinion expressed should be provided. Note that a lack of documented treatment, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.