Citation Nr: 21030788 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-23 487 DATE: May 19, 2021 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 April 1982 to September 1985. This matter comes before the Board of Veterans' Appeals (Board)on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for pes planus. The Veteran testified before the undersigned Veterans Law Judge at a July 2018 videoconference hearing. A transcript of the hearing has been associated with the record. The Board previously considered this appeal in December 2018 and July 2020 and remanded this issue for further development. The case returned to the Board for further appellate review. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues remaining on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right foot disability is remanded. 2. Entitlement to service connection for a left foot disability is remanded. Unfortunately, the Veteran's service connection claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. As aforementioned, in response to the Board's July 2020 Remand, a VA medical opinion was obtained in July 2020. Subsequently, the RO requested an addendum as the examiner failed to provide the Board requested opinions pertaining to the Veteran's right and left foot disability. The VA examiner based her rationale solely on the fact that there was no documentation of a foot condition in the service record and failed to comment on the Veteran's lay statements in the record and his testimony at the July 2018 Board hearing. In a September 2020 Addendum, the examiner opined that she already had considered the Veteran's lay statements as credible and competent evidence when formulating her July 2020 medical opinion and could not see a way to opine in the Veteran's favor. Despite this finding, she continued to state that there was no documentary evidence of the onset of the presence of a disease in service. The Board finds the July 2020 and December 2020 opinions are inadequate to adjudicate the Veteran's claims for service connection given the contradictory nature of the opinion. Furthermore, the examiner failed to consider the Veteran's lay statements asserting aggravation of his right and left foot condition during service. The VA examiner failed to provide an adequate rationale as her conclusions were not based on the Veteran's entire record. The examiner must consider the full record, to include the lay statements regarding in-service incurrence, and the opinion should reflect such consideration. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that a medical opinion report sufficiently inform the Board of a medical expert's judgment on a medical question, rely upon accurate factual premises, including the Veteran's lay statements and the relevant medical evidence of record, and present a fully articulated, sound rationale based upon applicable VA regulations and case law. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, a prior Board remand confers on the claimant a legal right to substantial compliance with the remand order; thus, the Board errs as a matter of law if it fails to ensure substantial compliance with prior directives. See Dyment v. West, 13 Vet. App. 141, 147 (1999); Stegall, 11 Vet. App. at 271. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue on appeal. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the electronic claims file. 2. After obtaining all necessary records, forward the claims folder to a suitable expert, other than the July 2020 physician, to review the file and provide an addendum medical opinion to determine the nature and etiology of any current right and left foot disability. The Veteran need not be scheduled for another physical examination unless such examination is considered necessary to provide a reliable opinion as to causation and aggravation by the examiner. The examiner is requested to provide the following information: (a.) Determine whether it is at least as likely as not that the Veteran's right foot disability was aggravated during, or as a result of the Veteran's period of active service beyond the natural progress of the condition. (b.) Determine whether it is at least as likely as not that the Veteran's left foot disability was aggravated during, or as a result of the Veteran's period of active service beyond the natural progress of the condition. The examiner must comment on all lay reports of symptoms of pain during service and the Veteran's report that the condition worsened during service, in the record and also comment on the Veteran's testimony that his feet were bad in service and he could not wear jump boots, only trainee boots, and that he was given a duty as a gate guard instead of performing in his regular job duties due to his foot pain, and that he did not go to sick call because he did not want to seem weak. (Continued on the next page) If the VA examiner opines that the Veteran's right and left foot disability was aggravated by the Veteran's active military service, then the examiner must opine whether there is clear and unmistakable (undebatable) evidence that any increase in severity is due to the natural progress of the disease. The claims file should be reviewed in conjunction with this request and the report thereof should reflect that such review occurred. Any examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be specifically acknowledged and considered in formulating any opinions. Rationales must accompany all conclusions, as speculative/conclusory opinions are not helpful and will require additional remands. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, 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.