Citation Nr: 21041322 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-14 818 DATE: July 8, 2021 ORDER Entitlement to service connection for a left foot disability is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. INTRODUCTION The Veteran had active service from November 25, 1985 to December 6, 1989, October 30, 1991 to February 23, 1992, December 17, 2001 to September 30, 2002, March 1, 2003 to June 14, 2004, January 23, 2005 to June 29, 2005, and January 28, 2012 to February 10, 2012, with several additional active and inactive duty training periods. In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in May 2019 and October 2020 the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. FINDING OF FACT The Veteran's left foot disability is etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for a left foot disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Board is granting the Veteran's claim, any error committed with respect to that claim is harmless. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran initiated a claim for service connection for a left foot disability in February 2012. He contends the condition was aggravated during his most recent period of active service. The medical evidence confirms the Veteran underwent an arthrodesis of the first metatarsal phalangeal joint, with Wright plate insertion on July 17, 2012. The central issue that must be resolved at this time is whether the Veteran's current disability was aggravated in service. Following the Board's October 2020 remand, the RO obtained some additional service treatment records (STRs), which pertained to the Veteran's most recent period of active service from January 28, 2012 to February 10, 2012. Though the records indicate the Veteran had experienced foot pain prior to this period of active service, his National Guard Unit conducted a line of duty assessment on March 4, 2013. At that time, a review board found the Veteran's disability pre-existed his active duty service, but was aggravated therein. The board explained the disability was aggravated by the rigors of pre-deployment training. Likewise, the Veteran has testified that as a result of his pre-deployment rucking and other training his pre-existing foot condition significantly worsened. As previously noted, this appeal turns on whether there is a nexus between the Veteran's current disability and his active duty service. The Veteran has competently and credibly reported that he experienced a worsening of his foot pain during his most recent period of active service. Additionally, a three-member board from his National Guard Unit also concluded his disability was aggravated during his active duty training. Accordingly, a nexus to service is established. In sum, the Board is satisfied that the evidence supporting a nexus between the Veteran's currently diagnosed left foot disability and his in-service injury is at least in equipoise with the evidence against a nexus. Therefore, the Veteran is entitled to service connection for his left foot disability. REASONS FOR REMAND While additional delay is untenable, further development is yet again required before the Veteran's remaining claim is decided. As previously explained in the October 2020 decision, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the May 2019 and October 2020 remands the Board found additional development was necessary in order to obtain the Veteran's STRs for both his Air Force National Guard service, and his service in the Army National Guard. The Board noted an April 2009 letter from the 105th Airlift Wing which indicated the Veteran's STRs were not provided. The Board also observed that the minimal STRs contained from the Veteran's period of service with the Army National Guard appeared to have been provided by the Veteran himself and did not contain a separation examination. Additionally, the Board previously acknowledged the record did not contain a DD Form 214 for the Veteran's most recent period of active duty from January 28, 2012 to February 10, 2012. To date, the RO has not drafted a formal finding of unavailability for the record, which indicates all efforts to obtain those records have been exhausted and additional attempts would be futile. Additionally, the above-noted missing records have not yet been obtained. Further, it does not appear the RO has contacted any of the Air Force of Army National Guard units provided by the Veteran in a November 2020 correspondence. As such, the Board finds additional development is necessary in order to achieve substantial compliance with the prior Board remands. Accordingly, the case is REMANDED for the following actions: Request from the National Personnel Record Center (NPRC), the Veteran's Air Force and Army National Guard Units, or any other appropriate source, the Veteran's complete official military personnel file (OMPF) and service treatment records (STRs), to determine whether any additional service records are available. If any requested records are deemed unavailable, a formal finding of unavailability must be drafted which details all efforts taken to obtain those records and explains why additional development would be futile. If so, the Veteran and his representative must also be notified in accordance with 38 C.F.R. § 3.159. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.