Citation Nr: 21023248 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-21 312 DATE: April 20, 2021 REMANDED Entitlement to service connection for a left foot disability, to include as secondary to a service-connected right knee disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1966 to November 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 Department of Veterans’ Affairs rating decision. In April 2016, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. In June 2016, July 2017, January 2018, March 2020, and October 2020 the case was remanded for additional development. In March 2020, the Board remanded this matter for a new examination and opinion to address the Veteran’s theory that his service-connected right knee disability aggravated his left foot disability. In the October 2020 Board remand, it was noted that the April 2020 provider of the examination conducted in response to the Board’s earlier remand had not complied with the March 2020 remand directives by 1) failing to provide an opinion that adequately addresses the Veteran’s primary (secondary service connection) theory of entitlement, and 2) providing a direct service connection opinion based on an improper factual basis. The issue was remanded for an opinion in compliance with the Board’s March 2020 remand directives, specifically by an appropriate clinician such as an orthopedist or podiatrist. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board remand directed the clinician to include an etiological opinion regarding each left foot disability (regardless of whether related or unrelated to his service), and an opinion addressing aggravation. In the January 2021 new VA medical opinion received in response, the consulting provider (a general practitioner, obstetrician gynecologist) opined that the current condition was less likely than not proximately due to or the result of Veteran’s service-connected condition or aggravated beyond the natural course, due to any cause including the veteran’s right knee conditions (noting a condition of the right knee would not cause a condition of the feet, except in cases of conditions with leg length discrepancy greater than 3-5 percent or chronic exaggerated Trendelenburg gait); adding that the same rationale for secondary cause applies to aggravation as well. The clinician also opined that it was less likely than not that the foot conditions are due to or had their nexus in service (noting there was no evidence of a foot condition while in service or proximate to service). The Board finds that the examiner’s opinion regarding “secondary cause” was conclusory and not clearly supported. The examiner failed to adequately address whether there was any increase in severity of the Veteran’s left foot disability that is proximately due to or the result of his service-connected right knee conditions. See 38 C.F.R. § 3.310(b). Further, the examiner identify the etiology for the Veteran’s left foot disability(ies), regardless of whether related or unrelated to his service as directed by the October 2020 remand directives. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand instructions. Accordingly, while the Board finds the additional delay inherent with yet another remand regrettable, the Board concludes that another remand to ensure compliance is necessary. The matters are REMANDED for the following action: The AOJ should arrange for the Veteran’s record to be forwarded to an appropriate clinician (e.g. podiatrist/in orpthpedics) for review and an adequate (fully compliant with instructions) advisory opinion addressing the nature and likely etiology of his left foot disability(ies). On review of the record, to include this remand, the consulting provider should provide an opinion that responds to the following: (a.) Regarding each left foot disability entity diagnosis shown by the record during the pendency of this claim, to include pes planus (claw foot), hallux valgus, lateral fifth toe callus, hallux rigidus, and hammer toes (toes two to four), is it at least as likely as not (a 50 percent or greater probability) that such disability is etiologically related to the Veteran’s service/events therein? (b.) If the response to (a) is no, is it at least as likely as not that the left foot disability was caused or aggravated by the Veteran’s service-connected right knee disability. The opinion must address aggravation. See 38 C.F.R. § 3.310(b). The rationale for any response indicating that the right knee disability did not aggravate a left foot disability must include an explanation beyond merely citation to when a left foot disability was first documented, but must explain why, once a left foot disability has become manifest, it would not have been impacted by (increased in severity due to) manifestations and impairment of the service-connected right knee disability. (c.) If a diagnosed left foot disability diagnosed is determined to not be related to service or to have been caused or aggravated by the service-connected right knee disability, identify the etiology for such disability that is considered to be more likely (and explain why that is so). All opinions must include rational with citation supporting factual data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.