Citation Nr: 21028597 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-32 190 DATE: May 11, 2021 REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1981 to November 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In March 2016, March 2017, April 2019, November 2019, and February 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for a lumbosacral spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a lumbosacral spine disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In February 2021, the Board remanded this matter for a VA examination to determine if there is an etiological relationship between any diagnosed back disability and service or any service-connected disabilities. At a March 2021 VA back examination, after in-person examination and review of the claims file, the examiner, a Physician's Assistant, diagnosed degenerative disc disease, intervertebral disc syndrome, and lumbar radiculopathy of the left lower extremity. The examiner opined that the claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there were no records from active service for chronic and persistent back pain in the service treatment records. The examiner also opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the service-connected disabilities. The examiner stated that the Veteran hurt his back in 1999 at his job and subsequently had back surgery in 2000 according to records in the service medical records. Therefore, the claimed condition was less likely than not due to the service-connected disabilities. The examiner also opined that the Veteran's back condition was not at least as likely as not aggravated beyond its natural progress by a service-connected disability. The examiner explained that the Veteran injured his back in 1999 at his civilian job and subsequently had surgery in 2000. The service-connected knee disability was less likely the cause for the current back condition. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the March 2021 examiner relied on the absence of symptoms or treatment in-service for the negative opinions concerning the demonstrated disabilities and did not provide an adequate rationale for the opinion provided, the Board finds the March 2021 VA examination to be inadequate. The VA examiner does not appear to have considered the Veteran's contentions regarding the back condition, as that was not addressed in the rationale. The VA examiner appears to have based the opinion solely on the objective evidence of record. Because the examiner did not discuss or consider whether there was subjective evidence or lay evidence to support a theory that the back disability was related to service, the Board finds the March 2021 examination report to be incomplete. Because the Board finds that the March 2021 VA back examination report is incomplete, the Board must also find that there has not been substantial compliance with the February 2021 remand instructions. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his claimed back disability. Therefore, on remand an examination should be scheduled to obtain an opinion as to the etiology of the Veteran's back disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). 2. Entitlement to service connection for a right foot disability is remanded. 3. Entitlement to service connection for a left foot disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a right and left foot disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In February 2021, the Board remanded this matter for a VA examination to determine if there is an etiological relationship between currently diagnosed foot disabilities and service or any service-connected disabilities. At a Marc 2021 VA foot examination, after in-person examination and review of the claims file, the examiner, a Physician's Assistant, diagnosed bilateral flat foot (pes planus). The examiner opined that the claimed foot disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner reasoned that the Veteran's March 1981 enlistment examination stated that the Veteran had moderate flat feet at entry to service. The Veteran's testimony that he experienced recurrent foot pain throughout active service was considered. However, the examiner opined that the current left and right foot pes planus was less likely than not incurred during service. The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that the Veteran's March 1981 enlistment examination stated that the Veteran had moderate flat feet at entry to service. The Veteran's testimony that he experienced recurrent foot pain throughout active service was considered. The examiner stated that there were no records in the service medical records that the Veteran was having foot pain during service or that foot pain had been aggravated beyond natural progression. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). An opinion that relies only on the absence of symptoms or treatment during service is incomplete. As the March 2021 examiner relied on the absence of symptoms or treatment in-service for the negative opinions concerning the demonstrated disabilities and did not provide an adequate rationale for the opinion provided, the Board finds the March 2021 VA examination to be inadequate. The VA examiner does not appear to have considered the Veteran's contentions regarding the foot condition, as that was not addressed in the rationale. The Veteran is competent to report symptoms and history and those reports must be acknowledged and considered in any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner considered the Veteran's complaints of pain in service but appears to have based the opinions solely on the absence of documented complaints in service. Because the examiner did not discuss or consider whether there was any subjective evidence or lay evidence to support a theory that the Veteran's foot disabilities were related to or aggravated by service, the Board again finds the March 2021 examination report to be incomplete. Because the Board finds that the March 2021 VA foot examination report is incomplete, the Board must also find that there has not been substantial compliance with the February 2021 remand instructions. Because the Veteran may have a disability that is related to service, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his claimed right and left foot disabilities. Therefore, on remand an examination must be scheduled and an opinion as to the etiology of the Veteran's foot disabilities must be requested. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for any back or foot disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to diagnose and determine the nature and etiology of any spine disability. The examiner must review the claims file, including this Remand, the Board's February 2021 Remand, and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner should address the Veteran's lay statements regarding the claimed back disability and symptoms during and since service. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A clearly stated rationale for each opinion offered should be provided and must not be based on the lack of an in-service record of the claimed disabilities. The examiner must reconcile the opinion with any previous opinions of record. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide the following opinions: (a.) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a thoracolumbar spine disability that was present in-service, or was incurred in service, or was the result of any disease, injury, or event during service. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any thoracolumbar spine arthritis manifested within one year following separation from service? Please cite to any evidence to support a finding of arthritis within one year following separation from service. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any thoracolumbar spine disability was caused by any service-connected disability or treatment for any service-connected disability, to specifically include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities? (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that any thoracolumbar spine disability has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to specifically include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities. 3. Then, schedule the Veteran for a VA foot examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of the claimed right and left foot disabilities. The examiner must review the claims file, including this Remand, the Board's February 2021 Remand, and the Veteran's lay statements, including hearing testimony, and should indicate review of the file in the report. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner should provide the following opinions, based on the record and interview and examination of the Veteran: For the moderate pes planus that was found at entrance to service, the examiner should opine whether it is clear and unmistakable pes planus not aggravated (worsened beyond the natural progress of the disease) during service. For any left or right foot disability is found to not have clearly and unmistakably preexisted entrance to active service, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) the right or left foot disability etiologically related to active service or any event, disease, or injury during service, including whether any foot disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by any service-connected disability or treatment for any service-connected disability, to specifically include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by any service-connected disability or treatment for any service-connected disability, to specifically include right total knee replacement, left total knee replacement, any associated gait abnormalities, and the other service-connected disabilities. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.