Citation Nr: 21031895 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-03 619 DATE: May 24, 2021 ORDER REMANDED Service connection for a right foot disability, to include pes planus, plantar fasciitis, and degenerative arthritis of the foot, is remanded. Service connection for a low back disability, to include lumbar spine degenerative disk disease (DDD), is remanded Service connection for a left knee disability, to include degenerative arthritis, is remanded. Service connection for a right shoulder disability, to include degenerative arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1988 to November 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO denied entitlement to service connection for bilateral plantar fasciitis, a lower lumbar back condition, a left knee condition, and a right shoulder condition. In October 2017, VA received the Veteran's Notice of Disagreement (NOD). In December 2018, the RO issued a Statement of the Case (SOC). In January 2019, VA received the Veteran's VA Form 9 appeal to the Board. In an August 2019 decision, the Board denied the Veteran's claims for service connection for a bilateral foot disorder, a left knee disorder, and a right shoulder disorder. Furthermore, the Board remanded the claim for service connection for a back disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Court Order granting a Joint Motion for Partial Remand (JMPR) the Court vacated the Board's August 2019 decision in part and remanded the case for further development in compliance with the directives specified in the JMPR. In December 2020, the Board remanded the case back to the RO for additional development of the record pursuant to the directives specified in the JMPR. In a January 2021 rating decision, the RO granted service connection for headaches and left foot plantar fasciitis and arthritis. As this constitutes a full grant of benefits sought on appeal (with regard to the headaches and left foot), those issues are no longer before the Board. 1. Entitlement to service connection for a right foot disability, to include pes planus, plantar fasciitis, and degenerative arthritis of the foot. This issue is remanded for a new VA examination. The Veteran underwent a VA examination for her feet in February 2021. Although the examiner provided a positive nexus opinion for the left foot, the examiner opined that the Veteran's right foot diagnoses were less likely than not related to service. The examiner reasoned that "[r]eview of records did not show evidence of complaints while in service." As with the June 2017 opinion, the February 2021 opinion failed to address the pertinent service treatment records (STRs), especially a June 1988 prescription of arch supports and a diagnosis of "peds plantis" and a July 1989 STR noting development of a lump on the top of the right foot. Also, contrary to the concerns raised in the JMPR and the Board's prior remand, the opinion did not consider the lay evidence. Accordingly, the opinion is inadequate, and a new opinion is needed. 2. Entitlement to service connection for a back disability, to include lumbar spine DDD. This issue is remanded for a new opinion. Pursuant to the Board's December 2020 remand, an opinion was given in February 2021. The VA examiner opined that the Veteran's condition was less likely than not (less than 50 percent probability) incurred in or caused by service because "[r]eview of records did not show evidence of back pain complaints while in service." The Board's December 2020 remand found that an opinion was needed based, in part, on the credible lay evidence reporting problems with the Veteran's back since active duty service. This VA examiner impermissibly relied on an absence of documented evidence during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). The VA examiner's failure to consider the Veteran's testimonial statement, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. As such, a new opinion is needed. Furthermore, the claims file contains no record of a separation examination, report of medical history administered at separation, or any other medical documents around the time of the Veteran's Chapter 8 medical discharge due to pregnancy. To date, the RO has not made a formal finding of unavailability or notified the Veteran that these records are unavailable. Also, it is not clear whether the Veteran is in possession or any separation examination or other service medical records that are not also in the claims file. In response to the Veteran's request for a copy of her DD Form 214, in July 2001, the National Personnel Records Center (NPRC) provided the Veteran with her "Separation Documents." Some of the documents in the enclosures attached to the letter (as represented in the claims file) were identified as "unscannable"; the enclosures do, however, include some medical records. As such, it is not clear what the Veteran received from the NPRC in July 2001. In light of the above, remand is also warranted for association of any outstanding STRs and personnel records with the claims file. 3. Entitlement to service connection for a left knee disability, to include degenerative arthritis. 4. Entitlement to service connection for a right shoulder disability, to include degenerative arthritis. The Veteran's service connection claims for left knee and right shoulder disability benefits are intertwined with the service connection claim for a back disability on appeal. Harris v. Derwinski, 1Vet. App.180 (1991). Therefore, further consideration of these issues must be deferred. The matters are REMANDED for the following action: 1. Request from the Veteran copies of any service medical records including, but not limited to, discharge records that were sent to her from the NPRC in July 2001 as noted in the July 2001 NPRC correspondence to the Veteran. 2. Attempt to obtain any outstanding service treatment records and service personnel records, to include a separation medical examination and/or report of medical history, from all appropriate sources. If unable to obtain additional records, the RO should prepare a formal finding of unavailability and notify the Veteran of the determination. 3. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the claimed right foot condition. For each diagnosis, the examiner must address whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. In answering this question, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why her 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. 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. 4. Obtain an opinion from an appropriate clinician to determine the nature and etiology of the claimed back disability. The examiner is asked to address whether a current back diagnosis at least as likely as not (1) began during active service, (2) manifested within [presumptive period] after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In answering this question, the examiner is asked to consider the statements from the Veteran and her ex-husband indicating that symptoms started during service. The examiner is asked to explain why their 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. (Continued on the next page) 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. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.