Citation Nr: 21027513 Decision Date: 05/06/21 Archive Date: 05/05/21 DOCKET NO. 16-00 782 DATE: May 6, 2021 REMANDED Entitlement to service connection for bilateral hammertoe is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Army from August 1997 to December 1997 and February 2003 to August 2003, with additional service in the Reserves. He is a combat Veteran of the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville, KY. In October 2018, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. 1. Entitlement to service connection for bilateral hammertoe is remanded. The Veteran contends he is entitled to service connection for bilateral hammertoe as a result of his active duty service in Iraq. The Veteran asserts his right leg, ankle, and foot were injured from shrapnel during mortar fire in March 2003 near Port Umm Qasr. He reports the following month, the medic, PFC C, noticed his limp and escorted him to an Air Force field station in Nasiriyah where he was treated for his right foot shrapnel injuries. The Veteran contends that the hammertoes resulted from these injuries not healing properly. Military personnel records confirm the Veteran was deployed from February 7, 2003 to August 15, 2003, with confirmed combat service from March to July. Unfortunately, the Veteran's service treatment records (STR) for this period have not been located. In November 2019, the Army Medical Department certified the Veteran's STRs are absent and any available records have been submitted. The additional STR evidence was submitted on November 15, 2019 and includes only lab results from San Antonio, Texas. The sole record of in-service treatment pertinent to this claim is a record submitted by the Veteran in 2011. The Board's 2018 remand aimed to obtain outstanding service records and authenticate the STR submitted by the Veteran before adjudicating the merits of the claim. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Thus, the question for the Board is whether the RO has substantially complied with the directives of the 2018 Board remand. The RO was directed to afford the Veteran an opportunity to provide further details on the source of the STR submission. Correspondence from October 2020 notified the Veteran his service treatment record (STR) could not be located and requested any documentation the Veteran could provide. The letter indicated the RO requested records from the Naval Mobile Construction Battalion in California on several occasions, but no response was received. In response, the Veteran contacted the RO to clarify that he never received treatment from the Naval Mobile Construction Battalion medic unit. The claims file shows the Veteran conducted convoys with a Naval Construction Battalion while stationed in Port Umm Qasr, where he asserts the original wound occurred in March 2003. However, he contends he was instead treated at an Air Force hospital or field station in Nasiriyah a month later. Thus, it is unclear whether the proper unit or agency has been asked to produce records. Additionally, the RO's July and August 2020 record requests sent to the Naval Construction Battalion were returned as "not deliverable as addressed" by the U.S. Postal Service in February 2021. In October 2020, the RO also requested the Veteran's records from the First platoon B Company of the 478th Combat Engineer Battalion from Fort Thomas, Kentucky and from the Army regional headquarters in Alabama. No response or formal finding has been received from either agent. Consequently, the claims folder does not demonstrate record requests have been made to the appropriate agencies, were received by the agencies, or that a response has been received. The Board's remand also instructed the RO to take the necessary steps to authenticate the STR submitted by the Veteran in 2011 and make a formal finding on the matter. The RO failed to make such a determination. As the authenticity of the May 2003 STR submitted by the Veteran remains unverified, and all measures to secure relevant records have not been completed, the Board finds substantial compliance has not been achieved with the 2018 remand. Id. at 271. Thus, remand is necessary to address deficiencies in the record and further develop the claim. Accordingly, the matters are REMANDED for the following action: 1. Contact the appropriate agencies to request copies of service records the for the Veteran. All efforts to obtain these records must be documented in the Veteran's claims folder. Attention is invited to the details of combat service provided in the Veteran's lay statement at: Correspondence, 10/29/2008. 2. Take the necessary steps to have the May 2003 STR submitted by the Veteran authenticated. An official determination must be made in writing and included in the claims folder as to the authenticity of the record. Attention is invited to the Board's October 2018 analysis of the STR submitted by the Veteran at: BVA Decision, 10/1/2018, pg. 5/10. 3. If, and only if, the RO determines that the record submitted by the Veteran is authentic, forward the claims file to the appropriate clinician and obtain an addendum opinion on the Veteran's foot disabilities. 4. Following a complete review of the claims file, the examiner is asked to respond to the following: 5. Indicate all disabilities of the feet since April 11, 2014, the date of the claim. 6. For any foot diagnoses, opine as to whether it is at least as likely as not (50 percent or greater probability) the Veteran's foot disability is related to his active duty service. Attention is directed to the medical opinion provided by the Veteran's VA physician at: Third Party Correspondence, 11/19/2012. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.