Citation Nr: 21030545 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-46 023 DATE: May 19, 2021 REMANDED Entitlement to service connection for a right foot disability, other than gout, is remanded. Entitlement to service connection for a left foot disability, other than gout, is remanded. Entitlement to special monthly compensation (SMC) based on the need of aid and attendance or on housebound status is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to July 1996. The Veteran died in March 2018, and the Appellant is his surviving spouse. In September 2015, prior to his death, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the Regional Office (RO), and a transcript of the hearing is associated with the record. Following the Veteran's death in March 2018, the Appellant filed a request in March 2018 to be substituted as the claimant in this case. Thereafter, in a June 2018 decision, the RO deemed the Appellant to be a valid substitute claimant for the purposes of processing the Veteran's appeal to completion with regard to the issues listed on the title page. See 38 U.S.C. § 5121A. The Appellant was scheduled to present testimony at a Central Office hearing before a Veterans Law Judge in January 2019. However, in a statement received in November 2018 (i.e., prior to the hearing date), the Appellant stated that she wanted to cancel this hearing and that she no longer wanted a Board hearing. In November 2020 the Board remanded the issues of entitlement to service connection for a right foot disability, left foot disability, and bilateral hearing loss; and, the issue of entitlement to SMC based on the need of aid and attendance or on housebound status. Subsequently, in a rating decision in February 2021 the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim of entitlement to service connection for bilateral hearing loss and thus this issue is no longer in appellate status. In the February 2021 rating decision the AOJ also granted service connection for gout of the feet and treated it as part and parcel of the Veteran's already service-connected disability for gouty arthritis of multiple joints. Notably, at the Veteran's September 2015 DRO hearing, it was clarified on the record that the current claim for service connection for left and right foot disabilities was "[t]otally separate and different" from his already service-connected gouty arthritis disability. Thus, as the Veteran during the pendency of the claim had diagnoses other than gout of the feet, the issues pertaining to entitlement to service connection for a right foot disability and left foot disability are recharacterized as reflected herein. Issues 1-3: Entitlement to service connection for a right foot disability, other than gout, entitlement to service connection for a left foot disability, other than gout; and, entitlement to SMC based on the need of aid and attendance or on housebound status. Service treatment records show a broken right foot and left foot stress fracture. There were several notations for chronic foot pain during service. Service treatment records show a broken right foot noted in September 1988 and a left foot stress fracture of the second metatarsal in September and October 1991. In December 1992, a service treatment note indicated that the Veteran was status post bilateral ankle fractures and left metatarsal fractures with complaints of periodic foot swelling, especially the left great toe. After service, during an April 2003 VA general medical examination (which took place prior to the Veteran filing his June 2012 claim for service connection for left and right foot disabilities), the April 2003 VA examiner opined that it was as least as likely as not that the Veteran's current "ankle/feet disability bilaterally" was secondary to gouty arthritis changes as well as traumatic injury of the fractures to both feet resulting from an in-service parachute jump in 1986; however, a current diagnosis pertaining specifically to the Veteran's feet was not identified or rendered in the April 2003 VA examination report. X-rays of the feet in October 2013 show degenerative changes involving multiple joints, bilateral pes planus, and bilateral retrocalcaneal spurs and small plantar calcaneal spurs. On the accompanying VA foot examination in October 2013 the Veteran was diagnosed with bilateral foot degenerative joint disease in the first and fifth digits bilaterally and retrocalcaneal and plantar calcaneal spurs bilaterally. The Board previously found VA opinions regarding the etiology of the Veteran's bilateral foot disability dated in October 2013 and August 2020 to be inadequate. In the November 2020 remand, the Board instructed that a VA opinion be obtained from a medical doctor or podiatrist who is to opine whether it is at least as likely as not (50 percent probability or greater) that any left or right foot disabilities diagnosed during the period of the current claim prior to the Veteran's death began during active service (and for any arthritis, within one year of service discharge), or are otherwise related to any incident of service; and, whether it is at least as likely as not (50 percent probability or greater) that any left or right foot disability diagnosed during the period of the current claim prior to the Veteran's death was caused or aggravated by the service-connected gouty arthritis of multiple joints? The Board instructed that "(t)he examiner must address the April 2003 and October 2013 VA opinions." Lastly, the Board also instructed the examiner to address whether it is at least as likely as not (50 percent probability or greater) that there were any residuals of foot fractures during the appeal period and prior to the Veteran's death? In a VA opinion in February 2021 the examiner opined that the Veteran's claimed left foot disorder was at least as likely as not incurred in or caused by service as he was diagnosed with gout in the left foot in 1984 and his residuals prior to his death are a result of the initial injury/illness. In a VA opinion in February 2021 the examiner opined that the Veteran's claimed right foot disorder was at least as likely as not incurred in or caused by service as he incurred a broken right foot and was diagnosed with gout in the right foot in 1984 during service. The examiner found that the Veteran's residuals of these disorders prior to his death were the result of the initial injury/illness. While the February 2021 VA examiner opined that the Veteran's gout of the right foot and left foot was related to service, the examiner did not comply with the Board's November 2020 remand directives as the examiner did not address whether any other bilateral foot disability diagnosed during the pendency of the claim was related to service. Compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed above, during the pendency of the claim the Veteran had multiple diagnosis pertaining to his bilateral foot disability to also include bilateral pes planus, bilateral retrocalcaneal spurs and small plantar calcaneal spurs, and degenerative joint disease. As for entitlement to SMC based on the need of aid and attendance or on housebound status, the issue is intertwined with the other issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). By this remand, the Board makes no determination, express or implied, concerning the credibility of any statements or testimony on file. The matters are REMANDED for the following action: Forward the file to the examiner who rendered the February 2021 opinion. If this examiner is unavailable another appropriate examiner, either a medical doctor or podiatrist, should provide an opinion to determine the etiology of any right or left foot disability other than gout. The examiner must review the claims file and should note that review in the report. A complete rationale should be provided for any opinions expressed. If the examiner is unable to provide an opinion, he or she should explain why. The examiner should address the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that any left or right foot disabilities other than gout diagnosed during the period of the current claim prior to the Veteran's death began during active service (and for any arthritis, within one year of service discharge), or are otherwise related to any incident of service? The examiner must address the April 2003 and October 2013 VA opinions. The examiner is hereby advised that the Veteran during his lifetime had multiple bilateral foot diagnoses to include bilateral pes planus, bilateral retrocalcaneal spurs and small plantar calcaneal spurs, and degenerative joint disease. See October 2013 VA x-ray. The examiner also is advised that service treatment records show a broken right foot noted in September 1988 and a left foot stress fracture of the second metatarsal in September and October 1991. In December 1992, a service treatment note indicated that the Veteran was status post bilateral ankle fractures and left metatarsal fractures with complaints of periodic foot swelling, especially the left great toe. During service there were several notations for chronic foot pain. (b.) Is it at least as likely as not (50 percent probability or greater) that any left or right foot disability diagnosed during the period of the current claim prior to the Veteran's death was caused or aggravated (increased in severity beyond its natural progression) by service-connected gouty arthritis of multiple joints? The examiner must address the April 2003 and October 2013 VA opinions. The examiner is hereby advised that the Veteran during his lifetime had multiple bilateral foot diagnoses to include bilateral pes planus, bilateral retrocalcaneal spurs and small plantar calcaneal spurs, and degenerative joint disease. See October 2013 VA x-ray. (c.) Is it at least as likely as not (50 percent probability or greater) that there were any residuals of foot fractures during the appeal period and prior to the Veteran's death? Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.