Citation Nr: 21041679 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-16 395 DATE: July 9, 2021 REMANDED Entitlement to service connection for bilateral toe disability to include hammertoes, claimed as muscle spasms in toes, is remanded. Entitlement to service connection for bilateral foot disability to include bunionectomies, claimed as foot pain, is remanded. REASONS AND BASES FOR REMAND The appellant served on active duty from August 1998 to December 1998, with an additional period of active duty in 2003 which has yet to be confirmed. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the appellant testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. During the hearing, the appellant agreed to waive consideration by the agency of original jurisdiction (AOJ) in the first instance of any additional evidentiary submissions. As a preliminary matter, the Board has found that new and material evidence is not required to reopen these matters. VA associated relevant service department records with the claims file after the September 2006 rating decision, which denied these matters. Under 38 C.F.R. § 3.156 (c)(1), when "[a]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence)." The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records (STRs) and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. Here, the Board finds that the newly associated service department records are indeed relevant for the purposes of reconsidering the appellant's appeal. In this instance, service treatment records (STRs) were obtained by VA in August 2013. These records include evidence which was not part of the STRs considered in the September 2006 rating decision and included a June 2003 Report of Medical Assessment at separation that showed feet problems were reported. Also, the Board has recharacterized the issues to more broadly reflect the benefit sought on appeal. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Although adjudicated as service connection for hammertoes, the appellant claimed muscle spasms in toes and is diagnosed with hallux valgus and degenerative changes. Although adjudicated as service connection for bunionectomies, the appellant claimed feet pain and is diagnosed with pes planus and degenerative changes. 1. Entitlement to service connection for bilateral toe disability to include hammertoes, claimed as muscle spasms in toes, is remanded. 2. Entitlement to service connection for bilateral foot disability to include bunionectomies, claimed as foot pain, is remanded. The appellant contends that she had preexisting toe/foot disabilities that were aggravated during active service, noting symptoms of spasms and cramps within weeks of mobilization, and that she had no feet pain until she was mobilized. See Correspondence (September 2006); Form 9 (March 2018). The appellant testified in March 2021 at a Board hearing that: she had foot surgery in April and June 2002; she would need 1-1.5 years to recover from these surgeries; she was called up for active duty although her feet had not fully healed; and that her feet disorders were aggravated during active duty, noting symptoms of pain at level 10 during training for deployment, whereas before it was only level 3 or 4 prior thereto. The appellant testified that Dr. Jacobs, who performed his surgeries, provided status updates every 6 months on her feet and that she was placed on a military profile, noting that she wore sneakers when showed up for deployment. At the March 2021 Board hearing, the appellant indicated that she saw Dr. Jacobs between 2001 and 2004, and she had no treatment from 2004 until 2015 when she saw a podiatrist (could not recall name). She also indicated that, in 2018, she saw Dr. Capo but has not seen him since 2018. The appellant stated that she does not get treatment because there is nothing that can be done to treat absence new surgeries. A review of the record shows that a September 2006 rating decision denied service connection for bilateral toe and bilateral feet disabilities because there was no evidence that the pre-existing disabilities permanently worsened as a result of service. STRs show that two bunionectomies were performed prior to active service, and that the appellant complained of bilateral foot pain and inability to wear boots during active service. In October 2003, a service physician opined that the appellant has "no foot problems she has healed after surgery." See STR - Medical (August 2013). VA treatment records showed no complaints for the feet or toes. A June 2003 Report of Medical Assessment for purpose of separation shows that feet problems were reported. Additionally, a private medical opinion was submitted in April 2018, which reflects that the appellant's private doctor opined that the appellant's pre-existing disabilities were aggravated during service because the appellant developed pain eight months after surgery during service. Having carefully reviewed the evidence of record, the Board concludes that remand is necessary to ensure that VA has met its duty to assist. First, remand is necessary to obtain relevant service records. Here, the appellant's certificate of release or discharge from active duty (DD Form 214) for the period of service in question has not been obtained. Additionally, there is some ambiguity regarding when, exactly, the appellant was released from active service. A Veterans Benefits Management System (VBMS) compensation and pension award sheet indicates that the appellant was released from active duty in July 2003. See Award Print (September 2014). However, STRs indicate that the appellant was still on active duty until at least August 2003, and possibly October 2003. See STR Medical (August 2013) (an August 2003 treatment note referenced the appellant as an "activated reserve female" and an October 2003 treatment note indicates that the appellant was seen by the Chief of Podiatry at Fort Eustis, Virginia). As the appellant's certificate of release or discharge from active duty would disclose the exact date and nature of the appellant's release from active duty but has not been made a part of the record, the record on appeal is inadequate. Second, remand is necessary to an examination and opinion. As an initial matter, the Board finds that, because hallux valgus and pes planus were noted on the appellant's May 1998 service entrance examination, the conditions preexisted service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The appellant's private doctor opined that the Veteran's service "caused exacerbation of her feet conditions." See Medical Treatment Record - Non-Government Facility (April 2018). The rationale was that the appellant developed severe feet pain and could barely walk after being mobilized. The Board finds that although the private clinician opined that the appellant's disabilities were aggravated by service, it is inadequate for adjudication as it provides little reasoning or analysis. The private clinician talks about aggravation, but there is no discussion of the disabilities' baseline severity or what evidence shows a permanent worsening beyond the natural progression of the disabilities. It is noted that a medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25 (2007). Also, "a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). A September 2014 VA examination report shows a diagnoses for bilateral hallux valgus (onset 2002) and bilateral pes planus (onset May 2003) along with bilateral degenerative changes in the hallux metatarsophalangeal joint and dorsal midfoot. The examiner opined that the appellant's pre-existing disability was not aggravated during service as the appellant "was seen and deemed fit for duty by a podiatrist on October 8, 2003, indicating there was no further injury to the appellant's feet at the time of discharge from active service." See C&P Exam (September 2014). The Board finds that the medical opinion is inadequate to decide the appeal as it was not based on an accurate factual premise and consideration of the appellant's prior medical history. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Despite the fact that pes planus was noted on the appellant's May 1998 service entrance examination, the examiner provided May 2003 as the date of diagnosis, which is inaccurate with the documented record. Additionally, the opinion is inadequate as the examiner provided no analysis or reasoning for why evidence showing that the appellant's disability was asymptomatic prior to starting the period of active service in 2003, and symptomatic during active service in 2003, did not indicate aggravation. Stefl, 21 Vet. App. at 124-25; Nieves-Rodriguez, 22 Vet. App. at 301. A December 2002 report of medical examination, prior to active service, shows that the appellant reported feet surgeries, but no pain or functional impairments. An August 2003 treatment note, during active service, shows that the appellant reported pain and tightness, and the attending clinician noted tenderness and swelling on palpation. A September 2003 treatment note, during active service, shows that the appellant's pain symptoms began two months after mobilization, which was the first time that the appellant started to wear military boots since her surgery. However, the opinion that there was no in-service aggravation is essentially based on a conclusionary opinion from October 2003 but does not reflect any meaningful consideration of the appellant's report that her symptoms began during her mobilization. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). For instance, it does not reflect consideration of the appellant's report that her mobilization included pre-deployment training, which consisted of physical fitness testing and field training exercises, and that she was unable to complete the training due to her feet problems. See Hearing Transcript (March 2021). Further, the opinion is inadequate does not address the nature and etiology of the x-ray findings for degenerative changes, to include whether this supports the appellant's theory of aggravation or reflects development of a new foot disease etiologically related to the appellant's active service including the wearing of military boots. STRs show that radiographic imaging performed in April 2003 were within normal limits, but radiographic imaging performed in September 2014 show bilateral degenerative changes in the hallux metatarsophalangeal joint and dorsal midfoot. Notably, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Given the above, remand for a new VA examination and opinion is necessary to decide the appeal. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, to ensure that VA has met its duty to assist, remand is required. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand The matters are REMANDED for the following action: 1. Ask the appellant to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms, treatment, and/or evaluation of the claimed toes and feet disorders. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the appellant's complete service personnel records, to include the DD Form 214 for her period of active service in 2003 and all documents pertaining to her service in the Army Reserves. Verify all active duty for training and inactive duty training dates for service in the Army Reserves from 1998 to 2003. Document all requests for information as well as all responses in the claims file. 3. Thereafter, schedule the appellant for a VA examination to address the claimed feet and toe disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the appellant, detail the appellant's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with any foot and/or toe disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The examiner should address the following: Theory of Aggravation of Preexisting Condition (a.) Whether hallux valgus and pes planus, which existed prior to the appellant's active service, at least as likely as not increased in severity during service. (b.) If so, whether the increase in severity clearly and unmistakably (undebatable) was due to the natural progress of the disease. Chronic Disease Arthritis (c.) For arthritis of the toe/feet, opine on whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. Consider whether any degenerative changes are etiologically related to the appellant's wearing of military boots during active service. Explain. NOTE (1): The opinion should reflect, at a minimum, consider the appellant's lay statements, a December 2002 report of medical examination, an August 2003 treatment note, and a September 2003 treatment note. NOTE (2): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions 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, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.