Citation Nr: 21022901 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-14 074 DATE: April 19, 2021 REMANDED Entitlement to service connection for a left foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1993 to May 1997. In June 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. The issue of entitlement to service connection for a left foot disorder remains the only issue on appeal. Here, in November 2018, the Board remanded this issue for additional development. In May 2019, the Board then issued a decision denying the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s May 2019 denial of the Veteran’s claim. Most recently, in December 2020, the Board again remanded this claim to the Agency of Original Jurisdiction (AOJ) for actions consistent with the findings of the JMPR. The Board is aware this matter was remanded twice before (and regrets the delay in final adjudication inherent with yet another remand). However, the response provided has been inadequate to comply with the previous remand, and corrective action remains necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the matters under consideration are of such medical complexity that the Board finds at this juncture that an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. Specifically, as discussed below, the etiology of the claimed disorder, in light of the Veteran’s contentions, require an expert opinion regarding the musculoskeletal system. For the reasons below, the AOJ must follow its established procedures for requesting an advisory opinion furnished by a medical school, university, or clinic on remand. 1. Left foot disorder In order to comply with the parties’ agreement in the May 2020 JMPR, the Board remanded this claim in December 2020. At that time, the Board noted that the May 2020 JMPR found the prior February 2019 VA examination report inadequate for rating purposes for several reasons. First, the parties agreed the VA examiner did not provide an opinion as to whether the diagnosed pre-existing pes cavus was aggravated by the Veteran’s service. Specifically, the examiner did not address the May 1995 service treatment records that noted pain and burning in the balls of his feet. The examiner also did not address the Veteran’s pes cavus was found to be asymptomatic, mild at service entrance and then characterized as “significant” at the time of the February 2019 examination. The Board also notes that, with respect to whether the diagnosed left foot disorders are due to or aggravated by the service-connected right ankle disability, the Board notes that since the last remand for an opinion on this matter, the Court issued a decision in June 2019 pertaining to this appeal. In Ward v. Wilkie, the Court held that secondary service connection is warranted for “any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions... regardless of its permanence.” 31 Vet. App. 233 (2019). On remand, the VA examiner found that the Veteran was diagnosed with pes cavus prior to service entrance, the examiner concluded there was no evidence, to include the two in-service notations, that the pes cavus was aggravated by service and the complaints of pain were due to the natural progression of the disease. See January 2021 VA Medical Opinion. Further, the examiner concluded there is no evidence that the Veteran’s left foot disorder was due to the service-connected right ankle disability. See January 2021 VA Medical Opinion. The VA examiner further concluded it was less likely than not the current left foot disorders were due to or incurred during service. See January 2021 VA Medical Opinion. The Board finds these opinions are inadequate for rating purposes as none of the proffered opinions includes a sufficient rationale. Further, with respect to the request for an opinion as to whether a currently diagnosed left foot disorder is due to OR aggravated by the service-connected right ankle disability, the examiner did not provide an opinion as to aggravation. Therefore, the Board finds a remand for an advisory opinion from an independent medical expert is required. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. The matters are REMANDED for the following action: 1. Obtain an advisory medical opinion from an independent medical expert regarding the etiology of the Veteran's diagnosed left foot disorders of plantar fasciitis and pes cavus pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.328. The AOJ must follow its established procedures for requesting such an advisory opinion. The examiner is asked to address the following: (a.) Did the diagnosed pes cavus, which was noted at service entrance and therefore, clearly and unmistakably existed prior to the Veteran’s entrance onto active duty, clearly and unmistakably DID NOT undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease. In providing this opinion, the examiner must address the following: 1. The Veteran’s March 1993 service entrance examination that noted a diagnosis of bilateral pes cavus, mild and asymptomatic; 2. May 1995 service treatment records noting in-service complaints pertaining to the left foot; and, 3. The Veteran’s March 1993 service entrance examination that noted the pes cavus to be mild, asymptomatic; and, 4. The February 2019 VA examination reported that noted the pes cavus to be “significant.” (b.) For all other diagnosed left foot disorders, the examiner is asked to provide opinions on the following: 1. For any diagnosed left foot disorder, the examiner is asked to provide an opinion as to whether it is at least as likely as not that any currently diagnosed left foot disorder is due to or the result of the Veteran’s military service. 2. Whether any diagnosed left foot disorder is at least as likely as not caused by his service-connected right ankle disability, yes or no? 3. Is it at least as likely as not that any diagnosed left foot disorder underwent any incremental increase (aggravation) in disability, regardless of its permanence, due to his service-connected right ankle disability, yes or no? The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. The expert is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. Furthermore, if medical literature is relied upon in rendering this determination, the expert should identify and specifically cite each reference material utilized. A complete rationale for all opinions offered must be provided. 2. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. (Continued on the next page)   YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.