Citation Nr: 21025119 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 12-08 993 DATE: April 27, 2021 REMANDED Entitlement to service connection for a left foot disability, to include as secondary to service-connected residuals of a left ankle fracture, is remanded. Entitlement to service connection for a chronic headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1986 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated September 2010 and August 2012 of a Department of Veterans’ Affairs (VA) Regional Office. The Veteran has testified during Board hearings in March 2015 and in February 2021 regarding the instant claims. Copies of the hearing transcripts have been associated with the electronic claims file. The Board notes that the Veteran’s pending appeal that includes claims for entitlement to service connection for posttraumatic stress disorder and left ear hearing loss, an increased rating for service-connected right ear hearing loss, and entitlement to a total disability rating based upon individual unemployability, will be addressed by the Board in a separate decision. In June 2015, the Board remanded the claims for additional development, to include obtaining outstanding medical records and to obtain a VA opinion addressing the etiology of the Veteran’s left foot disorder. In September 2017, the Board again remanded the claims to ensure compliance with its June 2015 remand, and to obtain additional VA medical opinions addressing the etiology of the Veteran’s left foot and headaches disorders. In July 2020, the Board found that VA failed to comply with its September 2017 remand directives concerning VA opinions, which necessitated another remand. Additionally, the Board directed that outstanding VA treatment records from the Biloxi, Mississippi VA Medical Center (VAMC) be obtained. While it appears that the Veteran’s treatment records from the Biloxi VAMC have been associated with the electronic claims file, the Board finds that there has not been substantial compliance with its July 2020 remand directives requesting medical opinions to address the etiology of the Veteran’s left foot and headaches disabilities. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). VA Examinations Although the Board sincerely regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that the Veteran is afforded every possible consideration. Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall, supra. Regarding the Veteran’s left foot disability, the October 2020 VA examiner opined that the Veteran’s talar bunionectomy of the left foot is not etiologically related to service or caused or aggravated by the service-connected residuals of a left ankle strain, noting that the cause of the Veteran’s left foot disability is “multifactorial with a strong genetic component.” The examiner left the statement unexplained, simply adding the phrase “per medical literature” and included an Internet link to uptodate.com with no further discussion. See VA medical opinion dated October 21, 2020 at pg. 4. Regarding the headache disability, the October 2020 VA examiner opined that the Veteran’s headaches are not related to service because his service treatment records are silent for headache symptoms, his post-service treatment records reflect “marked discrepancies” between what the Veteran has reported to his care-providers and what is documented in the medical records, and the headaches are “not caused by or related to GW environmental exposure,” the abbreviation “GW” apparently an abbreviation for “Gulf War.” The examiner stated, “per medical literature,” followed by what may be a copy-and-paste narrative of a highly technical nature from uptodate.com, without any explanation of the narrative. See VA medical opinion dated October 21, 2020 at pgs. 4-5. The Board finds both October 2020 VA medical opinions inadequate. First, an Internet link is no substitute for a probative supporting rationale for a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Regarding the language that may have been copied from uptodate.com, the VA examiner did not apply the literature to the Veteran’s specific disabilities and symptoms, and the undersigned will make no attempt to do so as the Board may not substitute its own unsubstantiated medical conclusions for an independent medical opinion to support its findings. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Regarding the Veteran’s asserted exposure to environmental hazards while deployed to Southwest Asia, the VA examiner’s curt opinion lacks any rationale and fails to consider the Veteran’s possible exposure to known Gulf War environmental hazards. For these reasons, the Board finds the October 2020 medical opinions inadequate. See Barr, supra. Accordingly, remand is necessary to obtain adequate opinions addressing the etiology of the Veteran’s left foot disability and chronic headache disabilities. See Stegall, supra. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA foot conditions examination by an appropriately qualified examiner who has practiced in the field of orthopedic medicine, OTHER THAN the examiner who authored the October 2020 VA medical opinion (if possible), to determine the nature and etiology of the currently diagnosed left foot disabilities. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. *The examiner’s review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify the currently diagnosed left foot disabilities that have been present at any point since the date of the claim. (b) For each currently diagnosed left foot disability (even if now asymptomatic or resolved), the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability (a) was caused OR (b) is or has been aggravated (worsened beyond the natural progression) by the service-connected residuals of a left ankle fracture, to include any associated gait abnormality. Both CAUSATION and AGGRAVATION must be addressed by the examiner. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, to include by identifying, to the extent possible, the baseline level of disability prior to the aggravation. (c) If the answer to (b), above, is negative, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability onset during service, manifested within one year after service separation, or is otherwise etiologically related to service. In addressing the above, the examiner must consider all pertinent lay and medical evidence of record, as well as, the Veteran’s oral and written lay assertions. Complete, clearly stated rationale for the conclusions reached, must be provided for each opinion proffered. 3. Then, schedule the Veteran for a VA examination by an appropriately qualified examiner who has practiced in the field of neurologic medicine, OTHER THAN the examiner who authored the October 2020 VA medical opinion, to determine the nature and etiology of the currently diagnosed chronic headache disabilities. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. *The examiner’s review of the body of this Remand is recommended to assist in avoiding errors that have rendered previous VA opinions inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify the currently diagnosed chronic headache disabilities that have been present at any point since the date of the claim. (b) For each currently diagnosed chronic headache disabilities (even if now asymptomatic or resolved), the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the disability had its onset during, or is otherwise medically-related to, the Veteran’s service, TO INCLUDE complaints of headaches therein and/or exposure to environmental hazards while stationed in SOUTHWEST ASIA. In addressing the above, the examiner must consider all pertinent lay and medical evidence of record, as well as, the Veteran’s oral and written lay assertions, to include the Veteran’s documented complaints of headaches during service and his assertions as to continuity of headache symptoms since service. 4. Complete, clearly stated rationale for the conclusions reached, must be provided for each opinion proffered. 5. To avoid another remand, ensure that the examiners have substantially responded to the questions posed by the Board, and if not, take corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). 6. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.