Citation Nr: 22014406 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-11 859 DATE: March 12, 2022 REMANDED Entitlement to service connection for right foot dorsal exostosis is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously denied by the Board in March 2021. Regarding the March 2021 Board denial, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2021 Court Order, pursuant to an October 2021 Joint Motion for Remand (JMR), the Court vacated the Board's March 2021 decision and remanded the claim for action consistent with the terms of the parties' JMR. As such, the claim is again before the Board. 1. Entitlement to service connection for right foot dorsal exostosis is remanded. In the JMR, the parties agreed that the Board erred in relying on an inadequate VA medical opinion dated December 2020 to deny the Veteran's claim. The December 2020 VA opinion was not clear with respect to the questions the Board asked: 1) did the Veteran's right foot dorsal exostosis preexist service, and 2) if so, was it aggravated by service? The parties agreed that the examiner did not expressly describe dorsal exostosis as a preexisting condition. Rather, the only two conditions the examiner identifies as preexisting are pes planus and the accessory digit. The only mention of dorsal exostosis in the entire opinion is in recounting the results of the August 2016 x-rays. The parties agreed that without a clear response to its questions, the Board is not equipped with sufficient medical information. In order to cure the agreed-upon error, the Board must remand for a new VA medical opinion that adequately addresses the aforementioned concerns. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a new examiner to determine the nature and etiology of the right foot dorsal exostosis. The VA examiner must review the entire claims file, including this Remand. The examiner should provide an opinion on the following: a. Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the right foot dorsal exostosis preexisted active service? b. If so, is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the preexisting right foot dorsal exostosis WAS NOT aggravated, or worsened beyond the natural progress of the disability, during the Veteran's active service? c. the examiner must also provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the right foot dorsal exostosis had its onset in active service or is directly linked to the Veteran's active service. i. The new examiner should consider the lack of notation of the dorsal exostosis condition in the Veteran's December 1982 entrance examination, despite the fact that the December 1982 examination report noted diagnoses of moderate pes planus and an accessory digit. ii. The new examiner should also consider the report of the Entrance Physical Standards Board which found a congenital abnormality of the right foot, along with the April 6, 1983, entry in Veteran's Chronological Record of Medical Care also indicating a congenital abnormality, but which first noted the accessory digit, and then the dorsal exostosis condition, and whether those records suggest that the accessory digit, dorsal exostosis, or both were being described as congenital. iii. The examination opinion must reflect consideration of the Veteran's lay statements of record. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. iv. The examiner should address The Journal of Foot & Ankle Surgery submitted by the Veteran in January 2022. Any opinion expressed must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The Board notes that the examiner may have a further obligation to research the medical literature. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.