Citation Nr: 21026971 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-30 663 DATE: May 4, 2021 REMANDED Entitlement to service connection for bilateral flatfoot is remanded. Entitlement to service connection for diabetes mellitus, type II (diabetes), to include as secondary to bilateral flatfoot and obesity, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1991 to July 1994. These matters come before the Board of Veterans Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office. These matters were previously remanded by the Board in October 2019. As an initial matter, the Board notes that, since the May 2016 Statement of the Case (SOC), the Veteran's claims have been characterized as ones of entitlement to service connection for diabetes and bilateral flatfoot, secondary to diabetes. However, the record indicates that the Veteran contends that his bilateral flatfoot is related to his active duty service, and his diabetes is secondary to his bilateral flatfoot and obesity. See June 2016 VA Form 9. Accordingly, the Board finds it appropriate to recharacterize the Veteran's claims as ones of entitlement to service connection for bilateral flatfoot and diabetes, secondary to bilateral flatfoot and obesity. 1. Entitlement to service connection for bilateral flatfoot is remanded. The Board sincerely regrets the delay associated with this remand, particularly as these matters are the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the October 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in October 2019, the Board instructed the AOJ to obtain all medical records identified by the Veteran, including any outstanding service treatment records (STRs). Though the Veteran has reported that, during service, he received treatment for his bilateral flatfoot at Womack Army Medical Center (AMC), no records relating to such treatment have been associated with the claims file, nor is there any indication that such records have been requested. See June 2016 VA Form 9. Additionally, only STRs related to the Veteran's discharge have been associated with the claims file. See STR-Medical. Therefore, in an effort to ensure compliance with VA's duty to assist, the Board finds that a remand is necessary to obtain outstanding medical records. Even if the Board could find substantial compliance with the October 2019 remand directives, a remand would nonetheless be warranted to obtain adequate opinions regarding the etiology of the Veteran's claimed conditions. In November 2013, the Veteran underwent a VA examination, in which the examiner opined that the Veteran's bilateral flatfoot was less likely than not incurred in or caused by service. In support of this opinion, the examiner noted that there was no documented report of or treatment for a flat foot condition, and though the STRs contain a report for foot problems, there was no clarification indicating this was related to a flatfoot condition. See November 2013 VA Flatfoot Disability Benefits Questionnaire (DBQ). In May 2019, a VA opinion was obtained, in which the examiner opined that the Veteran's bilateral flatfoot was less likely than not incurred in or caused by service. In support of this opinion, the examiner noted that there was no documented report of or treatment for a flat foot condition, and the foot problem noted at the time of separation was non-descript. See May 2019 VA Medical Opinion DBQ. However, the Veteran is competent to report the onset and progression of symptomatology, and an opinion based on the absence of treatment records without consideration of competent lay reports is inadequate. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the "notes" section of the Veteran's separation examination identifies his foot abnormality as "PP." See STR-Medical. As such, the May 2019 opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Moreover, as discussed above, the record indicates that pertinent medical records have not been associated with the claims file. As such, the examiner was unable to consider the Veteran's prior medical history and, therefore, the May 2019 opinion cannot be considered adequate for decision-making purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In February 2020, the Veteran was afforded VA examinations regarding his bilateral flatfoot, in which the examiner offered opinions as to whether the Veteran's bilateral flat foot was secondary to his diabetes. See February 2020 VA Foot Conditions DBQ; February 2020 VA Left Foot Medical Opinion DBQ; February 2020 VA Right Foot Medical Opinion DBQ. However, as discussed above, the Veteran's assertion is that his bilateral flatfoot is related to service. Therefore, the February 2020 opinions are inadequate to the extent they ignore such. For these reasons, the Board finds the November 2013, May 2019, and February 2020 VA opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an addendum opinion regarding the etiology of the Veteran's bilateral flatfoot. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for diabetes, to include as secondary to bilateral flatfoot and obesity, is remanded. The Board sincerely regrets the delay associated with this remand, particularly as these matters are the subject of a prior remand. However, based on a review of the evidence of record, the Board finds that another remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, the Board cannot find substantial compliance with the October 2019 remand directives and, therefore, a remand is necessary to obtain outstanding medical records. Second, as discussed above, the Veteran contends that his diagnosed diabetes is secondary to his bilateral flatfoot. As such, the Board finds the issue to be inextricably intertwined with the Veteran's claim of entitlement to service connection for bilateral flatfoot, which is remanded herein. As such, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Third, a remand is necessary to obtain an adequate opinion regarding the etiology of his diabetes. In February 2020, the Veteran was afforded a VA examination regarding his diabetes, in which the examiner opined that the Veteran's diabetes was less likely than not related to service. In support of this opinion, the examiner noted that the Veteran was not diagnosed with diabetes during service and was not diagnosed with such until 2010. See February 2020 Diabetes Mellitus DBQ; February 2020 VA Diabetes Medical Opinion DBQ. However, as discussed above, an opinion based on the absence of treatment records alone, without more, is inadequate. See Dalton v. Nicholson, supra. Moreover, as discussed above, the record indicates that pertinent medical records have not been associated with the claims file. As such, the examiner was unable to consider the Veteran's prior medical history and, therefore, the February 2020 opinion cannot be considered adequate for decision-making purposes. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). For these reasons, the Board finds the February 2020 VA opinion to be inadequate for adjudication purposes. As such, a remand is necessary to obtain addendum opinions regarding the etiology of the Veteran's diabetes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board notes that, in November 2019, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain his medical records on his behalf. See November 2019 VA Correspondence. To date, neither the Veteran nor his representative have responded to the request. VA's duty to assist is not a "one-way street," and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Notwithstanding the aforementioned, given that a remand is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the Veteran's electronic claims file the entirety of the Veteran's service treatment records (including records relating to treatment at Womack AMC) and any pertinent medical records, whether VA or private, including records relating to treatment at Louisville VAMC from January 2020 to current. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the above, and any additional development warranted by the record, return this matter to the February 2020 examiner and obtain an addendum opinion regarding the etiology of the Veteran's bilateral flatfoot and diabetes. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, or if the February 2020 examiner is unavailable, an examination should be scheduled and any indicates tests, studies, or evaluations should be conducted. The examiner is asked to: (a.) If an examination is conducted, obtain the Veteran's detailed lay history, including onset and progression of symptomatology and employment. (b.) For the Veteran's bilateral flatfoot, address the following: i. Does the evidence clearly and unmistakably show that such condition existed prior to service? ii. If such condition did clearly and unmistakably pre-exist the Veteran's service, does the evidence CLEARLY AND UNMISTAKABLY show that the pre-existing condition DID NOT increase in severity beyond the natural progress of the condition (i.e. the condition was not aggravated by service)? iii. If such condition did not clearly and unmistakably pre-exist the Veteran's service, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that it had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's diabetes had its onset during, or is otherwise related to, the Veteran's active duty service. (d.) If, and only if, the Veteran's bilateral flatfoot is found to be related to service in subsection (b) above, provide the following opinions: i. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's obesity was caused by his bilateral flatfoot. ii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's obesity underwent an incremental increase (aggravated), regardless of permanence, due to his bilateral flatfoot. iii. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's diabetes was caused by his bilateral flatfoot and related obesity (if found to be related above). iv. Whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's diabetes underwent an incremental increase (aggravated), regardless of permanence, due to his bilateral flatfoot and related obesity (if found to be related above). 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. Moreover, any incremental increase in disability need not be permanent. 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. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. THE EXAMINER IS REMINDED THAT THE VETERAN IS COMPETENT TO REPORT SYMPTOMS, TREATMENT, AND INJURIES, AND THAT HIS REPORTS MUST BE TAKEN INTO ACCOUNT IN FORMULATING THE REQUESTED OPINIONS. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.