Citation Nr: 21040163 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-38 957A DATE: July 2, 2021 REMANDED Entitlement to service connection for a right foot/ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1987 to September 1991. This matter is on appeal from an October 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2018 when entitlement to service connection for a disability of the right lower extremity was denied. The Veteran appealed the April 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court set aside the decision and remanded the matter for further proceedings. The Board remanded this matter for further development in June 2020 and December 2020. Entitlement to service connection for a right foot/ankle disability is remanded. The Veteran contends that he is entitled to service connection for a right foot/ankle disability. However, upon review of the record, the Board finds that additional development is necessary to clarify the nature and etiology of his current disability and ensure substantial compliance with prior remand directives. As explained by the Court, the appellant has raised the assertion that his right ankle condition is sinus tarsi syndrome. The Board thereafter remanded this matter in June 2020 and instructed the RO to obtain an opinion which identified any present right foot or ankle disability and provide a full rationale. The RO obtained opinions in August 2020 and April 2021, but neither opinion addresses whether right sinus tarsi syndrome is present. Additionally, August 2020 private treatment records note a current diagnosis of mild hallux valgus, and the August 2020 VA examiner noted objective positive findings of hallux valgus deformity. However, the examiners did not provide an opinion regarding the etiology of the Veteran's hallux valgus. Further, the April 2021 VA examination report omits a checkmark next to the diagnosis of hallux valgus, which suggests that the examiner found that hallux valgus was not present, but no rationale was provided for such a finding. A remand by the Board confers upon the Veteran, as a matter of law, the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, an addendum opinion must be obtained which addresses whether right sinus tarsi syndrome or hallux valgus is present and provides a full rationale for such findings. Further, as explained in the December 2020 remand, the Veteran was noted as having flatfoot (pes planus) at the time of his military enlistment examination in February 1987. See also 38 C.F.R. § 4.57 (stating that it essential to make a distinction between acquired and congenital pes planus). However, neither sinus tarsi syndrome nor hallux valgus were noted at entrance. The presumption of soundness applies when a disease or injury not noted upon entry to service manifests in service and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). Therefore, if the examiner notes the presence of right sinus tarsi syndrome or hallux valgus, the clinician must also provide an opinion as to whether the condition manifested during service. If so, the presumption of soundness attaches with respect to the disability, and there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Otherwise, an opinion addressing direct service connection must be obtained. Id. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from October 2019 to the present. 2. After completing the development requested in item 1, return the claims file to the August 2020 VA examiner, or another appropriate clinician if that examiner is not available, for review and an addendum medical opinion. An in-person examination (or telehealth interview) is only necessary if deemed so by the examiner. The reviewing clinician should be requested to provide opinions (based on a review of the record) to answer the following: (a.) Provide diagnoses for all present right ankle and foot disorders. In doing so, specifically address whether the Veteran has right sinus tarsi syndrome or hallux valgus, and provide a full rationale for such findings. (b.) For each diagnosis identified in (a) other than pes planus, provide an opinion as to whether the disability manifested during service. (c.) If the condition(s) identified in (a) and (b) did not manifest during service, is it at least as likely as not (a 50 percent or greater probability) that the condition was incurred in service or is related an in-service injury, event, or disease? (d.) If the condition(s) identified in (a) and (b) did manifest during service, is there clear and unmistakable evidence that the condition preexisted service and was not permanently aggravated in service? The clinician is advised that "clear and unmistakable evidence" is defined as obvious or manifest. Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood (i.e., it is undebatable.) (e.) If the answer to (d) is no, is it at least as likely as not (a 50 percent or greater probability) that the condition was incurred in service or is related an in-service injury, event, or disease? (Continued on the next page) A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.