Citation Nr: 21031807 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-03 177 DATE: May 24, 2021 REMANDED Entitlement to service connection for a bilateral foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1975 to December 1982. This matter most recently returns to the Board from a March 2020 Board remand. 1. Entitlement to service connection for a bilateral foot condition is remanded. The Veteran contends that her current foot pain is related to the foot pain, for which she was treated in-service. The record indicates the Veteran was treated for calluses, mild pes planus, plantar facia strain, blisters, and foot pain in-service. The Veteran's in-service foot conditions necessitated wearing special footwear and adjustments to her training, specifically the running portions. The Veteran reports running the two-mile run barefoot, and the treatment records indicate she should be allowed to wear tennis shoes during runs. Post-service treatment records indicate a diagnosis of hyperkeratosis and metatarsalgia in June 2015. The records also contain callus treatments. The Veteran has submitted statements that she has experienced foot pain since service. An additional statement from the Veteran's sister states that the Veteran has complained of pain since her separation. The Veteran was afforded a VA examination in December 2019 which provided a negative nexus opinion. The examiner indicated the Veteran's post-service foot treatments cannot be etiologically related to the treatments and complaints of foot pain in-service. In March 2020, the Board requested an addendum medical opinion to address the etiology of the Veteran's hyperkeratosis and metatarsalgia. The examiner was instructed to specifically address the lay statements of record, from the Veteran and her sister, that the Veteran experienced foot pain since her separation. A May 2020 addendum opinion indicates that the record is absent of treatment from 1981 to 2014, and as such, the metatarsalgia and hyperkeratosis were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board notes that the VA examiner's opinion was based, in essence, on the absence of evidence as negative evidence. The mere fact that medical records do not establish chronicity is not, in and of itself, a sufficient basis on which to rest a medical conclusion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), quoting Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The examiner did not consider the lay reports of continued foot pain since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service medical records to provide a negative opinion). Specifically, the medical opinion did not address the Veteran's statements or the statement from the Veteran's sister as instructed by the prior Board remand. As the remand instructions were not fully complied with, a remand is appropriate. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate VA examiner. The claim file including a copy of this remand must be made available to the examiner for review. The examiner must acknowledge receipt and review. All relevant diagnoses should be noted. For each diagnosis, the examiner should opine in whether it is at least as likely as not (50 percent or better probability) that the current foot condition had its onset in or is otherwise etiologically related to the Veteran's service, including the complaints and treatments of the Veteran's feet in-service. The examiner must address the Veteran's reports of consistent foot pain in-service and continued pain since service, as well as the corroborating statements from the Veteran's sister of foot complaints since service. (continued on the next page) Rationale for all opinions should be provided. If the examiner cannot provide a requested opinion without resorting to speculation, such should be clearly stated along with an explanation as to why a more definitive opinion could not be provided. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.