Citation Nr: 21022603 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 18-38 092 DATE: April 16, 2021 REMANDED Entitlement to service connection for a bilateral foot disability, to include plantar fasciitis, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had periods of active duty service from August 1984 to June 1987, from January 1988 to November 1991, and from December 2003 to February 2005. The Veteran also had other service as a Reservist. These matters were previously before the Board and were remanded for further development in September 2018. Entitlement to service connection for a bilateral foot disability, a back disability, a right ankle disability, and arthritis are remanded. The Veteran contends all of his above claimed conditions are due to his time in service, to include time spent serving in the Gulf War. The Veteran has had multiple examinations for his disabilities and has been diagnosed with a right ankle disability, multiple foot diagnoses, a back disability, and degrative arthritis in several joints, including his knees and feet. The Veteran’s service treatment records (STRs) show that he complained of bone pain during his time in service, including when deployed in 2005. A May 2004 STR shows the Veteran had pain due to a left foot bone spur for a year and a half and that the Veteran was put on a profile due to his recurrent left foot plantar fasciitis. Additionally, a post-service note in April 2009 said that the Veteran had suggestions of arthritis in his joints. In June 2016, a private examiner submitted an opinion. The examiner noted the Veteran had diagnoses of arthritis of the shoulders, elbows, and wrists, and a low back condition. This examiner opined that these conditions are more probable than not secondary to his military service. However, this opinion does not indicate the Veteran’s entire file was reviewed nor does it offer a rationale for the opinions offered. In accordance with the remand instructions, the Veteran was afforded several examinations for his claimed disorders. In this regard, the August 2019 VA Gulf War examiner found the Veteran had no conditions that were related to his time during his service in the Gulf War. The Veteran was also afforded examinations in January 2020. The January 2020 examiner opined it was less likely than not the Veteran’s right ankle disability was due to his time in service. The Veteran denied complaints of ankle pain during his time in service, but did complain of gradual onset after separation, but the examiner pointed out there were no records of ankle complaints in the Veteran’s STRs or within one year of separation from service. Regarding the Veteran’s foot disability, the examiner opined it was less likely the Veteran’s foot disability was incurred in or due to his time in service or that it was aggravated beyond its natural progression by service, saying that the Veteran’s STRs were silent for complaints or treatment “related to now claimed feet pain” and that there was no evidence that the Veteran had complained within five years after his active duty separation. Similarly, the examiner opined the Veteran’s back condition was less likely than not incurred in or caused by his time in service, saying the Veteran’s STRs were silent for continuity of complaints or treatment for a back problem or within two years of his separation. The examiner opined the Veteran’s degenerative changes were due to the normal aging process. The Veteran had further examinations in September 2020. The September 2020 examiner opined it was less likely the Veteran’s ankle, foot, and back disabilities or arthritis were incurred in or due to his time in service. The examiner stated there was no evidence that established a bilateral foot disability pre-existed any period of active service or evidence that showed it was aggravated beyond its natural progression by the Veteran’s time in service. The examiner opined it was less likely than not the Veteran’s back disability and right ankle disability, to include his arthritis were caused by his time in service, to include his exposure to environmental hazards during his Gulf War service. The examiner opined it was less likely than not the Veteran’s disabilities had their onset related to the Veteran’s service in the Gulf War and that conditions did not manifest within one year of separation from any of his periods of active duty service. The examiner reviewed the Veteran’s record and viewed it in light of medical literature and said that the Veteran’s record was silent “in terms of complaints related to his degenerative conditions.” The examiner stated there was “no evidence that connect these alterations and chronic changes” with the Veteran’s time in service, nor did the examiner observe “any worsening of his now chronic conditions during his” time in service and that there were no complaints or physical examinations five years after having been discharged for these conditions. However, while the post-Remand VA examinations were thorough in that they offered detailed opinions and explanations, these examinations did not consider the Veteran’s lay statements about how his pain (i.e., observable symptomatology) started in service and continued after service as required by the United States Court of Appeals for Veterans Claims (Court). See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009) (holding the veterans are competent and credible to report on observable symptomatology because it comes to them vie their senses). In this regard, the Board notes that the Veteran’s statements are evidence that must be considered when rendering an opinion and the absence of treatment records does not negate this lay evidence. Additionally, these examiners did not address the Veteran’s STRs that showed the Veteran’s complaints of joint pain and possible arthritis while in service as specifically directed by the Board in the last Remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance) Therefore, these examinations are inadequate and new examinations must be obtained. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall, supra. While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Entitlement to a TDIU is remanded. The Veteran’s claim to a TDIU is inextricably intertwined with these service connection claim and will also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the earlier Remand, the schedule the Veteran for an examination with an appropriate to determine the etiology of his 1) bilateral foot disability, 2) back disability, 3) right ankle disability, and 4) arthritis. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In order to comply with the earlier Remand, the examiner in providing the below opinions must specifically consider and discuss, among other things, (i). the Veteran’s lay statements about how his pain (i.e., observable symptomatology) started in service and continued after service and (ii) the STRs that showed the Veteran’s complaints of joint pain and possible arthritis while in service. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner should opine as to the following: (a) Whether any of the Veteran’s currently diagnosed disability clearly and unmistakably existed prior to any of his periods of active duty service. (b) Whether any of the Veteran’s currently diagnosed disability was diagnosed upon his entry to any of his periods of active duty service. (c) If the diagnosed disability existed prior to any of his active duty periods service or was diagnosed upon his entry to any of his periods of active duty service, is it at least as likely as not aggravated beyond its natural progression by his time in service. (d) Whether any of the Veteran’s currently diagnosed disabilities is it at least as likely as not due to his time in service. (e) Whether any of the Veteran’s currently diagnosed disabilities is it at least as likely as not caused by any of his service-connected disabilities. (f) Whether any of the Veteran’s currently diagnosed disabilities is it at least as likely as not aggravated by any of his service-connected disabilities. (g) Whether it is at least as likely as not the Veteran’s arthritis disability manifested within one year of separation from any period of active duty service. (h) If a nexus to his service or an already service-connected disability cannot be established for any of the Veteran’s currently diagnosed disabilities, please provide an opinion as to whether the disability pattern is consistent with: (i) an undiagnosed illness, (ii) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (iii) a diagnosable chronic multisymptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis. (i) If, after reviewing the claims file, you determine that the Veteran’s disability pattern is consistent with either (iii) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (iv) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion as to whether it is at least as likely as (i.e., at least equally probable) that the disability pattern or diagnosed disease is related to environmental exposures experienced by the Veteran during his service to include his service in the Southwest Asia theater of operations. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should be aware of the facts that the Court held in Ward v. Wilkie, 31 Vet. App. 233 (2019) that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page)   If the examiner cannot respond to an inquiry without resort to speculation as to any of the above questions he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.