Citation Nr: 21042622 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-29 702 DATE: July 13, 2021 REMANDED Entitlement to service connection for a foot disability (bilateral pes planus, bilateral plantar fasciitis, bilateral heel spurs, and right foot degenerative joint disease (DJD) of the first metatarsophalangeal joint), to include as secondary to service-connected right foot bunion is remanded. Entitlement to service connection for a left foot bunion is remanded. Entitlement to service connection for chest pain and reflux (gastroesophageal reflux disease, hiatal hernia, and gastritis), to include as secondary to service-connected psychiatric disability and associated medication is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to September 1986. The Board most recently remanded the claim in September 2018 for further development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a foot disability (bilateral pes planus, bilateral plantar fasciitis, bilateral heel spurs, and right foot DJD of the first metatarsophalangeal joint), to include as secondary to service-connected right foot bunion. 2. Entitlement to service connection for a left foot bunion. The Veteran claims that in addition to her service-connected right foot bunion, she currently has a bilateral pes planus, bilateral plantar fasciitis, bilateral heel spurs, right foot DJD of the first metatarsophalangeal joint, and left foot bunion. The Veteran claims that her disabilities are due to either a 15-foot fall she experienced during active duty; the footwear she was required to wear on active duty; or her service-connected right foot bunion. The Veteran's preexisting bilateral pes planus was noted on her August 1980 entrance examination. When a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. Jensen v. Brown, 19 F.3d 1413 (Fed.Cir.1994). Additionally, the Veteran indicated on a July 1986 Report of Medical History at separation from service that she experienced foot trouble. After service, the Veteran's medical treatment records (MTRs) show treatment and diagnoses for bilateral plantar fasciitis, bilateral heel spurs, right foot degenerative joint disease (DJD) of the first metatarsophalangeal joint, and left foot bunion. See August 2009, May 2013, and October 2013 MTRs. After the September 2018 Board Remand, the Veteran received VA examinations in January 2019, July 2019, January 2020, and August 2020. However, the claims must be remanded again because the medical examinations are inadequate. The January 2019 VA examiner noted diagnoses of the right foot bunion, right pes planus, and right foot plantar fasciitis, and did not include an opinion as to whether the diagnosed foot conditions were incurred in service or are the result of any incident in service. The July 2019 examiner similarly addressed the Veteran's right foot bunion (rather than the left) and did not note the previously diagnosed bilateral heel spurs or right foot DJD of the first metatarsophalangeal joint. Furthermore, the examiner did not provide any opinion regarding secondary service connection. Although the January 2020 examiner identified all the Veteran's foot conditions, the examiner's opinions were inadequate. Specifically, the examiner's negative opinions as to direct service-connection were conclusory in nature, and their negative opinions as to secondary service-connection used the incorrect standard of aggravation; that is beyond the natural progression. Additionally, the August 2020 examination did not consider previous evidence noting the Veteran's diagnosed left foot bunion. Remand is needed for more thoroughly reasoned addendum opinions. 3. Entitlement to service connection for gastrointestinal disorders (gastroesophageal reflux disease, hiatal hernia, and gastritis), to include as secondary to service-connected psychiatric disability and associated medication is remanded. The Veteran asserts that her service-connected psychiatric disability is contributing to the gastrointestinal disorders. Specifically, she claims that her digestive symptoms are caused by her service-connected chronic anxiety and depression. The Veteran's private and VA treatment records indicate current diagnoses for (gastroesophageal reflux disease) GERD, hiatal hernia, and gastritis. See June 1998 private treatment records; April 2013 and March 2013 MTRs. The claim must be remanded again because the January 2020 and September 2021 VA medical opinions are inadequate. The January 2020 examiner opined that the Veteran's GERD and hiatal hernia were not incurred in or caused by active service, however the examiner appeared to base the negative opinion on the lack of treatment; with no consideration of the Veteran's complaints of continuous symptoms since service. Further, the September 2021 addendum opinion noted that the Veteran's claims file was not reviewed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate VA examiner. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. (a) Does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that the Veteran had a bilateral pes planus disability that existed prior to her entry onto active duty for either period? (b) If the answer is yes, does the evidence of record clearly and unmistakably (i.e. it is undebatable) show that any bilateral pes planus disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease? The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms beyond its natural progression (c) If the answer to either (a) or (b) is no, is it at least as likely as not (i.e., 50 percent or greater probability) that any currently diagnosed bilateral pes planus had its clinical onset in service or is otherwise related to service? 2. Obtain an addendum opinion from an appropriate VA examiner, to determine the likely etiology the Veteran's foot disabilities, to specifically include (1) bilateral plantar fasciitis, (2)bilateral heel spurs, (3) right foot degenerative joint disease (DJD) of the first metatarsophalangeal joint, and (4) left foot bunion. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on the review of the record (and examination if needed), the examiner should answer the following: (a.) Is it at least as likely as not that the Veteran's foot disabilities are related to an in-service injury, event, or disease during service, to include a 15-foot fall during active duty and/or the footwear she was required to wear on active duty? Why or why not? The examiner is informed that the lack of treatment, in service or after, cannot be the sole basis for a negative opinion. (b.) If the answer to (a) is no, is it at least as likely as not that the Veteran's foot disabilities (i) caused or aggravated (defined as any increase in disability) by her service-connected right foot bunion disability? Why or why not? 3. Obtain an addendum opinion from an appropriate VA examiner, to determine the likely etiology the Veteran's gastrointestinal disorders (1) gastroesophageal reflux disease, (2) hiatal hernia, and (3) gastritis. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. Based on the review of the record (and examination if needed), the examiner should answer the following: (a.) Is it at least as likely as not that the Veteran's gastrointestinal disorders are related to an in-service injury, event, or disease during service, to include a 15-foot fall during active duty and/or the footwear she was required to wear on active duty? Why or why not? The examiner is informed that the lack of treatment, in service or after, cannot be the sole basis for a negative opinion. (b.) If the answer to (a) is no, is it at least as likely as not that the Veteran's gastrointestinal disorders (i) caused or aggravated (defined as any increase in disability) by her service-connected right foot bunion disability? Why or why not? If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. If the examiner refers to medical studies, the examiner must discuss the significance of the studies as they relate to the specific facts of this case. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion 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; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 4. Confirm that the VA medical opinions provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.E. Bresler, 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.