Citation Nr: 21023992 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-05 326 DATE: April 21, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1994 to January 2001, February 2003 to June 2003, and December 2009 to December 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was last before the Board in November 2020 where it was remanded for additional development. While in remand status, in a February 2021 rating decision, the RO granted service connection for pericarditis, pes planus of the right foot, and a lumbar sprain. There is no evidence that the Veteran filed a Notice of Disagreement (NOD) with the assigned ratings or effective dates. Thus, these issues are no longer on appeal. Entitlement to service connection for a left foot disability is remanded. While further delay is regrettable, the Board finds that additional development is needed prior to adjudication of this claim. The Veteran’s service-treatment records reveal that he was assessed with bilateral foot pain and stress in service in 1994 and was provided arch supports. During the August 2019 VA examination, the Veteran reported bilateral foot pain and that he can walk 15 to 20 minutes prior to getting pain on the dorsum of the foot bilaterally. He indicated that his pain started and continued since wearing boots in boot camp in 1994. In accordance with prior remand instructions, a VA examination was obtained in January 2021. The VA examiner was instructed to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any left foot disability, to include pain causing impairment, is etiologically related to one of the Veteran’s three periods of active service. See November 2020 Board Remand. The examiner was further instructed to not rely solely on the absence of disability in service as the basis for a negative opinion, and advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. See November 2020 Board Remand. The VA examiner did not diagnose any left foot condition, noted that there was no pain upon examination, and did not provide any opinion for the claimed left foot condition. See January 2020 VA examination. There is no indication that the VA examiner considered the Veteran’s lay statements as to the onset and continuity of his pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the requirement that a veteran have a current disability can be met if there is a disability at any point during the claims period or even shortly before the claims period. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, pain can constitute disability if it results in impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, an addendum opinion is warranted. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from September 2019 to the present. 2. After completion of #2, forward the claims file to an appropriate examiner to obtain an addendum opinion with respect to the nature and etiology of any left foot disability. The claims file must be reviewed by the examiner and such review should be noted in the examination report. If a new examination is deemed necessary to respond to the request, one should be scheduled. Following review of the claims file, the examiner should provide the following opinions: A. Is it at least as likely as not (50 percent probability or more) that any left foot disability is etiologically related to one of the Veteran’s three periods of active service? B. If there is no diagnosed disability, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any pain reaches the level of functional impairment of earning capacity? Describe the impairment caused. If so, is it at least as likely as not (50 percent probability or more) that this pain had its onset in and/or is otherwise etiologically related to the Veteran’s period(s) of active service? (If there is evidence of symptoms for any condition between two periods of active service, the examiner should state whether it is clear and unmistakable that a chronic foot disability preexisted the subsequent period of service and, if so, whether it is clear and unmistakable that such preexisting disorder was not aggravated during such subsequent service.) The examiner must not rely solely on the absence of disability in service as the basis for a negative opinion. The examiner must be advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and chronic nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.