Citation Nr: 21032661 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 13-20 112 DATE: May 27, 2021 REMANDED Entitlement to service connection for a chronic disability manifested by bilateral foot pain is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from April 1980 to December 1980, August 2001 to April 2002, January 2003 to June 2003, and August 2004 to December 2005, to include service in Kuwait and Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was most recently remanded by the Board in May 2020. The Board directed the RO to obtain an addendum VA opinion for the Veteran's complaint of chronic bilateral foot pain. Although the Veteran was provided the addendum opinion in January 2021, the opinion is inadequate and does not substantially comply with the May 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, further development is needed regarding the claim of service connection for bilateral foot pain. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded an addendum VA opinion in January 2021 for his bilateral foot pain. The opinion is inadequate as the examiner failed to consider the Veteran's lay statements regarding the onset of his foot pain. Dalton v. Nicholson, 21 Vet. App. 23 (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). During a February 2015 Decision Review Officer (DRO) hearing, the Veteran testified that prior to being deployed to Iraq, he never had any foot problems, but his feet started to hurt shortly after arriving in Iraq. He stated that his feet hurt so badly that he could barely make it to sick call and was given a profile and wore tennis shoes. He also stated that he could not stand or lift, and after three or four days, the pain returned and got worse. Further, the Veteran's May 2011 treatment records note the Veteran's foot pain as one of the reasons he left the military. A review of the January 2021 VA addendum opinion is absent for any indication suggesting that the examiner considered this testimony prior to rendering an opinion. And, once again, the January 2021 VA examiner did not appear to consider the unavailability of records in the provided addendum opinion, as explicitly directed in the Board's prior remand. Therefore, a second addendum VA medical opinion that considers the unavailability of service treatment records and the Veteran's lay statements as to the onset of his foot pain, including the February 2015 DRO hearing testimony, should be obtained. The Board also notes that in his October 2014 Statement in Support of the Claim, the Veteran stated he received treatment 2006/2007 at the Tuscaloosa VA Medical Center for his foot pain. However, the noted treatment records have not been associated with the Veteran's claims file. Accordingly, a remand is necessary to obtain those records and associate them with the claims file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Obtain and associate all pertinent VA medical records not yet associated with the Veteran's claims file, including all records scanned into VistA for the entire appeal period. 2. Obtain the Veteran's 2006 and 2007 Tuscaloosa VA Medical Center treatment records, particularly those relating to treatment for bilateral foot pain. Document all requests for information as well as all responses in the claims file. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's diagnosed bilateral foot conditions are at least as likely as not related to his service, specifically service in Iraq in 2004. The examiner's opinion may not be based solely on the absence of in-service complaints of foot pain, especially considering the March 2011 VA Memorandum formally finding that the entirety of the Veteran's service treatment records are unavailable. The examiner must explicitly consider any of the Veteran's lay statements, including the February 2015 DRO hearing testimony, regarding symptomatology during service and any continuity of symptomatology since discharge and/or since onset. The examiner should also consider any other pertinent evidence of record, including the May 2011 treatment records noting foot pain as a reason for separation from service. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. If an examination is needed, one should be scheduled. In formulating the opinions, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.