Citation Nr: 21040205 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-03 185 DATE: July 2, 2021 REMANDED Entitlement to service connection for a right foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2015 rating decision that denied entitlement to service connection for a right foot disability. The Veteran perfected a timely appeal to that decision. In November 2018, the Board remanded the instant matter as well as claims for service connection for hypertension and a low back disorder to the RO for further evidentiary development. Following the requested development, supplemental statements of the case (SSOC) were issued in March 2020 and April 2021. A March 2020 rating decision granted the Veteran's claim for service connection for lumbar degenerative disc disease with intervertebral disc syndrome and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes that the claim for service connection for hypertension was remanded in November 2018 to allow for the issuance of a statement of the case. Such a statement of the case was issued in March 2020; however, a substantive appeal was not received. Therefore, this issue is not before the Board for adjudication. 1. Entitlement to service connection for a right foot disorder is remanded. Unfortunately, another remand is warranted. The Board sincerely regrets the additional delay; however, further evidentiary development is necessary before the Veteran's claim for service connection for a right foot disorder can be adjudicated on the merits. Pursuant to the Board remand, the Veteran was afforded a VA examination in September 2019 for evaluation of the right foot. Following examination of the right foot, the VA examiner opined that the claimed right foot disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. As a rationale, the examiner found that there was no evidence of pes planus during the military service and no evidence of any injury to the feet during military service. However, the service treatment records reflect that the Veteran was seen in September 1988 for complaints of a glass in the right foot for the past two months and it was noted that he had had the injury worked on before and that he had a large callous in the area of the injury. The assessment was pain caused by build up of callous. Therefore, the Board finds that the September 2019 opinion is based on an inaccurate factual premise and consequently is inadequate to determine the etiology of the Veteran's right foot disorder. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The Board acknowledges that the Veteran was afforded another examination in February 2021, following which the examiner reported a diagnosis of bilateral pes planus. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. As a rationale, the examiner explained that pes planus can occur in childhood or from an injury, and it can also occur from the wear and tear due to aging, obesity and rheumatoid arthritis. The examiner also noted that an X-ray done on the right foot in April 1980 showed no acute abnormalities. The examiner further noted that the Veteran's pes planus is bilateral and not limited to the right foot. The examiner stated that he was unable to find any records of an injury to the posterior tibial tendon of the right foot during the military service which could have caused the right pes planus, therefore it is less likely than not that the current right foot condition is incurred from a right foot condition during the service. As mentioned above, the service treatment records reflect that the Veteran sustained an injury to the right foot in September 1988, which was not considered by the VA examiner in forming his medical opinion. As such, the February 2021 is also inadequate as it is also based on an inaccurate factual premise. See Reonal v. Brown, supra; Monzingo v. Shinseki, supra. Therefore, the Board finds that a new opinion should be obtained to determine the nature and etiology of the Veteran's right foot disorder. See Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following actions: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed right foot disorder. The Veteran's claims file must be made available to and reviewed by the VA examiner in conjunction with this examination. All tests and studies deemed appropriate should be performed. The need for further in-person examination is left to the discretion of the examiner. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question: For any right foot disorder identified, is it at least as likely as not (i.e. probability of 50 percent or greater) that such condition had its onset during active service or is related to any in-service disease, event or injury, to include the Veteran's stepping in a pothole while running during physical training? Explanations for all opinions must be provided. In providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, consider and comment on the Veteran's in-service treatment records, including the September 1988 treatment record. Any medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.