Citation Nr: 21032544 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-45 267 DATE: May 27, 2021 REMANDED Entitlement to service connection for a left foot condition is remanded. Entitlement to service connection for a right foot condition is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1976 to June 1978. This matter comes before the Board of Veteran's Appeals (Board) from a June 2016 and a September 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019 when the claim of service connection for a left foot disability was reopened and remanded for development. The Board finds the July 2019 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2019 Board decision, the Board also denied the claim of service connection for a right foot disability. The Veteran disagreed with that decision and appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Remand (JMR) where the parties requested vacatur of the July 2019 Board decision and that the claim was remanded for re-adjudication. The claim is now before the Board. In March 2021, the Veteran requested his case to be expedited. See correspondence of March 2021. This request is interpreted by the Board as a motion to have his case advanced on the docket (AOD) pursuant to 38 C.F.R. § 20.902. Appeals must be considered in docket number order but may be advanced if sufficient cause is shown. 38 U.S.C. § 7107(b); 38 C.F.R.§ 20.902(c). Sufficient cause includes advanced age (defined as 75 years or more), serious illness, or severe financial hardship. The Board has considered the Veteran's motion and finds that the Veteran has not submitted sufficient evidence to demonstrate the necessity of an AOD. While the Veteran has health issues, there is no indication of serious illness as contemplated by 38 C.F.R. § 20.902 (c)(1) and he is not considered of advanced age. Additionally, although the Veteran submitted evidence of financial hardship in the years 2012, 2013, 2014 and 2015; the record does not show, and the Veteran has not contended, that he is currently suffering from severe financial hardship. In the absence of evidence showing sufficient cause, the Veteran's Motion to Advance on the Docket is denied. Additionally, the Board notes that in a letter, dated November 2016, the Veteran seems to express disagreement with the character of his discharge from service. See correspondence of November 2016. However, the matter of the Veteran's character of service is not on appeal and the Board has no jurisdiction to review that matter, at this time. 1. Entitlement to service connection for a left foot condition is remanded. 2. Entitlement to service connection for a right foot condition is remanded. The Veteran seeks service connection for a left foot condition and for a right foot condition. In favor of his claims, the Veteran has submitted multiple lay statements describing his in-service incurrence and how he believes his current feet conditions are related to his service. In a Statement in Support of Claim, dated September 2008, the Veteran explained that he believes his foot disability to be related to wearing tight boots in service. He also seemed to argue that it was actually his right foot and not his left foot that suffered a laceration in service and stated that the record is missing and that a note showed he needed a replacement. See Statement in Support of Claim, dated September 2008. In a letter, associated with the claims file in February 2010, the Veteran explained that he believed his bilateral foot disabilities to be related to his service; specifically, to having worn tight boots because he lost his gear. He also noted he had a scar on his right foot. In this letter, the Veteran seems to argue that he was claiming service connection for a right foot disability, not the left, or that in the alternative he was claiming both feet. See Correspondence associated with the claims file in February 2010. In a Statement in Support of Claim, associated with the claims file in June 2010, the Veteran characterized his claim as "service connection for both feet (L) [and] (R) infection." He argued that his condition was due to poor circulation, caused by tight boots, that were not the right size. He explained that his gear was lost. He also noted that while performing his regular duties, his right foot suffered a laceration (explained as "produced an opening") and that his left foot became infected. He noted he has scars on both feet related to these injuries in service. He further asserted that his in-service injuries have resulted in radiculopathy, which he attributes to having worn tight boots. Additionally, he asserted that the record is erroneous and writing of the record is botched. See Statement in Support of Claim, dated May 2010 and associated with the claims file in June 2010. In August 2010, the Veteran contacted VA about the status of his appeal and mentioned he believed the claim was erroneous, as it should have been for a right foot condition and not a left foot infection. See Report of General Information, dated August 2010. In another letter to VA, associated with the claims file in September 2010, the Veteran reiterated that the claim should be characterized as a right foot condition and not his left. See Correspondence associated with the claims file in September 2010. In September 2013, the Veteran provided testimony at the RO in favor of his claims. Pertinent to the present appeal, the Veteran explained that he had lost his gear before he was sent overseas to Japan. He explained that because he had lost his gear, he was told to just grab a "C-bag" with shoes, a uniform and some work clothes and that he was sent overseas like that, without medical records and without his clothing. At the hearing, he again explained that he had a scar on his right foot, that he believed was related to his in-service injury. In terms of the in-service injury or occurrence, he explained that while deployed in the Philippines, he felt a stinging on his foot and that it was bothering while going uphill. He thinks it was due to moisture/sweat. The Veteran also explained that he reported his injury to a corpsman and that he received treatment, but he did not remember what specific treatment. He also noted that although both his feet suffered, he believed that his claim should be characterized as service connection for a right foot condition because he had a scar on that foot. See testimony at the RO, September 2013. In a letter to VA, associated with the claims file in March 2014, the Veteran again noted the scar on his right foot, and that he believed his left foot suffered abrasions due to his boots not fitting properly. See correspondence, dated February 2014, associated with the claims file in March 2014. In a letter, dated November 2016, the Veteran re-asserted that his bilateral foot troubles were due to his boots fitting improperly while in service. See correspondence of November 2016. This letter also seems to suggest, the Veteran disagreed with the character of his discharge from service. However, as previously noted that issue is not part of the present appeal and the Board has no jurisdiction over that matter, at this time. In November 2017, the Veteran provided testimony at an informal hearing at the RO. He explained that his foot problems began in service due to his ill-fitting boots. He reiterated that he suffered from blisters or infections during service. See Informal Conference Report, associated with the claims file in November 2017. The Veteran's service treatment records (STRs) have been associated with the claims file and show an initial "opening" note stating that the Veteran's health records, and personal gear, were lost at a bus in San Diego. See STRs for August 1976. They also contain a Report of Medical Examination for enlistment, dated January 1976, showing a normal clinical evaluation with no abnormalities noted for his feet. See Report of Medical Examination for enlistment, dated January 1976. A "replacement" Report of Medical Examination, dated August 1976, shows the Veteran's feet were noted as normal. See replacement of Report of Medical Examination, dated August 1976. In August 1976, the Veteran sought medical care for his left foot at various times. The Veteran reported that his boots were the wrong size, and that it was causing rubbing and swelling. The foot was noted to have mild swelling and discoloration. A diagnosis of possible cellulitis was rendered. The examiner noted that the Veteran's infection was due to tight boots making a blister. The Veteran was directed by his doctor to wear tennis shoes for 5 days. See STRs for August 1976. In December 1977, the Veteran sought care for a laceration on his right foot. He was provided mole skin to stop friction. While it is unclear from the laceration note the exact location of it, a physical examination for mess duty that same month revealed he had gone to sick call for a laceration to his right foot in the prior 30 days. See STRs for December 1977. A Report of Medical Examination for Separation, dated June 1978, shows no findings pertinent to the Veteran's feet. See Report of Medical Examination for Separation, dated June 1978. The Veteran's post-service medical records have been associated with the claims file. In December 2019, the Veteran was administered a Foot Conditions, including Flatfoot, Disability Benefits Questionnaire (Feet DBQ); pursuant to the Board's July 2019 remand directives. The examiner noted diagnoses of bilateral flat foot, and bilateral plantar fasciitis. He also noted the Veteran's left foot hammer toes. The examiner also noted the Veteran's medical history pertaining to his feet, to include his report of having done excessive physical training in tight boots, his treatment for an infection and a laceration pertaining to his feet while in service, as well as his current symptoms of pain, and his functional limitations. It was also noted that the Veteran has right foot palsy or foot drop due to an injury to his iliac crest bone during a biopsy. See Feet DBQ of December 2019. Following the examination, the examiner opined that the Veteran's claimed condition for his left foot, was less likely than not related to his service. In favor of this opinion, the examiner noted that there is no objective medical evidence in the STRs that could establish a direct nexus or relationship between the Veteran's service and his current left foot condition of mild pes planus (flat foot) with plantar fasciitis and hammertoes. The examiner also noted the Veteran's cellulitis diagnosis in service, that developed due to a blister caused by tight boots. However, he opined that the cellulitis condition resolved without residuals because the Veteran's STRs are silent for the remainder time of active duty. See medical opinion, associated with the claims file in December 2019. The Board finds this medical opinion on the etiology of the Veteran's left foot disability inadequate for adjudication purposes as it relies on the absence of contemporaneous medical evidence to provide a negative nexus opinion, without addressing the Veteran's lay statement or providing a reasoned rationale for discarding them. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2010); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Accordingly, the claim of service connection for a left foot condition needs to be remanded for a new medical opinion on the possible etiology of the condition. Additionally, the claim of service connection for a right foot condition needs to be remanded for a medical opinion addressing its possible etiology pursuant to McLendon v. Nicholson. 20 Vet. App. 79 (2006). Under McLendon v. Nicholson, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See Id., 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). In the present appeal, the evidence of record shows that the Veteran has a current diagnosis of a disability pertaining to his right foot and that he had an in-service incurrence; as he was treated for a laceration on his right foot and the STRs support his assertion of having worn ill-fitting boots that caused blisters. The Board finds that these findings are sufficient to trigger VA's duty to assist in obtaining a medical opinion as there is insufficient competent medical evidence on file to adjudicate the claim. The Board notes that the Feet DBQ of December 2019 contains findings pertinent to the Veteran's right foot. As such, it is left to the examiner's discretion whether a new examination is necessary to render the requested opinion. Accordingly, the claim of service connection for a right foot disability must be remanded for a medical opinion that addresses its possible etiology. Finally, the Board acknowledges the Veteran's assertions that the record is incomplete. See Statement in Support of Claim, dated September 2008; see also testimony at the RO hearing, September 2013. It seems the Veteran was referring to his STRs. The Board notes that the Veteran's STRs have been associated with the claims file. However, in light of the Veteran's assertion that the STRs are incomplete, an additional attempt must be made to ensure that all STRs are associated with the claims file. The matters are REMANDED for the following actions: 1. Take appropriate steps to ensure that the Veteran's complete service treatment records (STRs) are associated with the claims file. Document in a memorandum whether the Veteran's records are complete and/or issue a formal finding of unavailability for any identified outstanding record. 2. Update existing post-service medical records. Any response, including negative responses, must be associated with the claims file. 3. Request a medical opinion addressing the etiology of the Veteran's left foot condition. The examiner is asked to opine whether it is at least as likely as not that the Veteran's diagnoses of pes planus, plantar fasciitis and/or hammertoes are related to his service, to include wearing ill-fitting boots and/or other above-noted in-service treatment for his left foot. 4. Request a medical opinion addressing the etiology of the Veteran's right foot condition. The examiner is asked to opine whether it is at least as likely as not that the Veteran's diagnoses of pes planus and/or plantar fasciitis are related to his service, to include wearing ill-fitting boots and/or other above-noted in-service treatment for his right foot. Whether a new examination is necessary to provide the requested opinions, is left to the examiner's discretion. For both requested medical opinions, the examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the examiner must identify the additional information needed. The examiner is advised that the Veteran's lay statement about his in-service incurrence, to include wearing ill-fitting boots, must be considered, and discussed. Denial of service connection for a disability cannot be solely based on the lack of complaints, diagnosis, or treatment of a disability during service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993); see also 38 C.F.R. § 3.303 (d). (Continued on the next page) If the lay statements are inconsistent with the medical evidence, with medical principles concerning his condition(s), or if there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a reasoned explanation (rationale) citing the medical findings or other evidence leading to the conclusion that the statements are inconsistent with the medical evidence or medical principles. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.