Citation Nr: 21031700 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-25 711 DATE: May 24, 2021 REMANDED Entitlement to service connection for lumbar spine degenerative arthritis, to include as due to service-connected disabilities is remanded. Entitlement to service connection for a left ankle disability, to include as due to service-connected disabilities is remanded. Entitlement to service connection for a left foot disorder, to include pes planus, heel spur, and plantar fasciitis is remanded. Entitlement to service connection for a right foot disorder, to include pes planus, heel spur, and plantar fasciitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1994 to April 1997 and from September 2005 to August 2007. This matter comes before the Board of Veterans Appeals (Board) on appeal from February 2012 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. 1. Entitlement to service connection for lumbar spine degenerative arthritis, to include as due to service-connected disabilities is remanded. 2. Entitlement to service connection for a left ankle disability, to include as due to service-connected disabilities is remanded. Pursuant to the January 2019 Board remand the Veteran received a VA examination in February 2020. In the Board remand, the examiner was directed to address whether the Veteran's lumbar spine disability was secondary to her service-connected disabilities to include right and left knee degenerative arthritis and cervical degenerative arthritis. The examiner was also directed to address whether the Veteran's left ankle disability was secondary to her service-connected right and left knee degenerative arthritis. An addendum opinion was obtained in August 2020 to address secondary service connection. However, the examiner only opined as to whether the Veteran's lumbar spine and left ankle disabilities were secondary to her service-connected right knee degenerative arthritis and did not address left knee or cervical degenerative arthritis. The Board sincerely regrets the additional delay occasioned by multiple remands. However, the Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for a left foot disorder, to include pes planus, heel spur, and plantar fasciitis is remanded. 4. Entitlement to service connection for a right foot disorder, to include pes planus, heel spur, and plantar fasciitis is remanded. Pursuant to the January 2019 Board remand the Veteran received a VA examination in February 2020, and an addendum opinion in August 2020. The examiner was directed to address whether the Veteran's foot disorder clearly and unmistakably existed prior to the Veteran's period of service from 2005 to 2007, and that is was clearly and unmistakably not aggravated during that term of service. The August 2020 examiner provided a negative opinion. However, in the rationale provided, the examiner referred to the Veteran's back examination rather than her foot examination. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the Veteran submitted additional evidence in the form of a thumb drive and lay statements regarding her injuries and symptoms in November 2020. When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of the Veteran's lumbar spine degenerative arthritis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering her pertinent medical history and lay statements regarding her reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that her lumbar spine degenerative arthritis was incurred in, aggravated by, or etiologically related to her military service. The examiner should also address the Veteran's lay statements asserting that she has had lumbar spine pain since service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that her lumbar spine degenerative arthritis was caused or aggravated by her service-connected left knee, right knee, and cervical degenerative arthritis. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Obtain an addendum opinion to determine the nature and etiology of the Veteran's left ankle disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering her pertinent medical history and lay statements regarding her reported symptoms, the examiner should opine as to: (a.) Whether it is at least as likely as not (a 50 percent probability or greater) that a left ankle disability was incurred in, aggravated by, or etiologically related to her military service. The examiner should also address the July 1996 service treatment records showing treatment for a left ankle sprain and the Veteran's lay statements asserting that she has had ankle pain and instability since that time. (b.) Whether it is at least as likely as not (a 50 percent probability or greater) that her left ankle disability was caused or aggravated by her service-connected left knee and/or right knee degenerative arthritis. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Obtain an addendum opinion to determine the nature and etiology of the Veteran's right and left foot disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which she had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteranif deemed necessary by the examinerand considering her pertinent medical history and lay statements regarding her reported symptoms, the examiner should address the following: (a) Identify all of the Veteran's right and left foot disorders demonstrated during the appeal period on in proximity to the claim, even if currently resolved. A date of onset for each disability, if possible, should be provided in the opinion. Please consider the Veteran's prior diagnoses of pes planus, plantar fasciitis, and heel spurs. (b) For each foot disorder identified, the examiner should address whether it clearly and unmistakably preexisted the Veteran's period of service from 2005-2007. In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. (c) If the VA examiner determines that the disorder pre-existed the Veteran's period of service from 2005-2007 by clear and unmistakable evidence, he or she should provide an opinion as to whether there is clear and unmistakable evidence that any such disorder was NOT aggravated to a permanent degree during that term of service beyond that which would be due to the natural progression of the disability. The Board notes that treatment records from 2003 show treatment for plantar fasciitis and flat feet, and a December 2003 x-ray found pes planus and mild first metatarsophalangeal joint osteoarthritis. (d) If it is found that there is clear and unmistakable evidence that the Veteran's disorder existed prior to service and that there is clear and unmistakable evidence that the condition was not aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his or her conclusion. (e) If the examiner determines that any identified right and left foot disorder did not, by clear and unmistakable evidence, preexist military service and was not, by clear and unmistakable evidence, not aggravated by service, the examiner should opine as to the following: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed foot disorder was incurred in, aggravated by, or etiologically related to her military service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.