Citation Nr: 21030529 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-33 493A DATE: May 19, 2021 REMANDED Service connection for a left foot condition, to include traumatic arthritis. REASONS FOR REMAND The Veteran had active service from July 1972 to June 1976 and from October 1990 to March 1991. He served in Southwest Asia from October 1990 to March 1991. He also had service in the Reserve. This matter is on appeal from a May 2010 rating decision. The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing from the RO in June 2017. The Board remanded this issue in August 2020 and again in January 2021. Service connection for a left foot condition, to include traumatic arthritis. This issue is remanded as there was not substantial compliance with the Board's January 2021 remand directives. The Board remanded to obtain an opinion as to the etiology of heel spurs and gout. The Board explained that an earlier VA opinion in September 2020 identified strain on the foot muscles and ligaments as a potentially etiology of heel spurs. The Board explained why the Veteran's service was consistent with strains on the foot due to parachute jumping, including an injury in August 2003. The Board found the September 2020 opinion deficient because the VA examiner did not specifically address whether there was a connection between the heel spurs and the in-service injury. The opinion also did not address gout. The Board asked the examiner upon remand to address whether gout and/or heel spurs at least as likely as not had its onset directly during the Veteran's service or was otherwise causally related to any event or circumstance of his service. In answering this question, Board asked the examiner to refer to a prior VA opinion in September 2020 indicating that heel spurs can be caused by strains on foot muscles and ligaments. The Board asked the examiner to address whether the Veteran's heel spurs are related to the strain placed on the foot from his parachute jumps, including an injury while parachuting. Upon remand, a VA opinion was given in January 2021. This VA examiner marked the box indicating that "the claimed condition 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's rationale, in its entirety, was as follows: After a review of the history as detailed by the medical records, it is my opinion that the claimed left heel spur condition was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. A review of medical records shows that the Veteran was diagnosed with the left heel strain more than twenty years after discharge from active duty. An x-ray done in 2003 did not show evidence of the heel spur. Therefore, it is less likely that the heel spur condition began while in service. The Board finds that this opinion is incomplete for three reasons. First, it did not address, or even appear to consider, whether the Veteran's heel spurs are related to the strain placed on the foot from parachute jumps, including the injury while parachuting. It is entirely silent as to this question asked by the Board. Instead, the examiner appears to have been answering only whether the condition was first directly incurred during a period of active duty service. Perhaps the examiner intended to mean that the heel spurs could not be due to the in-service strains from parachuting because the x-ray done in 2003 would be expected to show the heel spurs if such had occurred. This interpretation is entirely speculation on the Board's part, however, as the VA examiner did not articulate any clarifying rationale. In other words, the VA examiner's explanation appears to be implying that the heel spurs would have occurred proximate in time with the 2003 parachute accident. If that was the examiner's intended meaning, such a rationale appears to conflict with the other evidence of record, including the prior, September 2020 VA examiner's opinion. That VA examiner explained "[h]eel spurs occur when 'calcium deposits build up on the underside of the heel bone,'" but "can also be caused by '[s]trains on foot muscles and ligaments, stretching of the plantar fascia.'" This September 2020 VA examiner's rationale implies that heel spurs occur over time due to calcium deposit build-ups or strains on the foot muscles. The January 2021 VA examiner's opinion is so brief and conclusory that it does not inform the Board's judgment on this critical question even though that was a primary reason for the remand. Second and relatedly, such a rationale would not be based on a factually accurate medical history. The January 2021 VA examiner stated that heel spurs were diagnosed more than twenty years after the Veteran's service. The VA medical records show a diagnosis of heel spurs in December 2014. While this would have been greater than twenty years after the Veteran's last period of active duty service ending in March 1991, he had ongoing Reserve service through January 2006, including Airborne training in 1992 with parachute jumps through 2003. Hence, it is clear the January 2021 VA examiner did not fully consider the extent of the Veteran's service, including his parachute jumps. The Board specifically asked the examiner to not rely on an absence of evidence unless it justified to do so. Contrary to the Board's instruction, the VA examiner relied on an absence of evidence without laying the foundation for doing so. Finally, the VA examiner did not address gout, as requested by the Board. In short, the January 2020 VA examiner's opinion is essentially nonresponsive to the questions and concerns raised in the Board's prior remand. As such the January 2021 opinion is not compliant with the Board's remand, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998) The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's left foot. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. (a.) The examiner is asked to address whether gout and/or heel spurs at least as likely as not had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service. (b.) In answering this question, the examiner should refer to the prior VA opinion in September 2020 indicating that heel spurs can be caused by strains on foot muscles and ligaments. The examiner should address whether the Veteran's heel spurs are related to strain placed on the foot from parachute jumps, including an injury while parachuting. (Continued on the next page) (c.) The examiner is asked to consider the statements from the Veteran indicating symptoms starting from service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. (d.) The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.