Citation Nr: 22015672 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 11-26 187 DATE: March 18, 2022 REMANDED Entitlement to service connection for a left foot disability, claimed as a residual of cold weather injury, is remanded. Entitlement to service connection for a right foot disability, claimed as a residual of cold weather injury, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1981 to November 1984 and from April 1986 to September 1987. This matter comes before the Board on appeal from a March 2009 Regional Office (RO) rating decision. In May 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board denied these claims in December 2020. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, by order dated October 2021, granted a Joint Motion for Partial Remand from that same month, vacating the Board's decision and remanding the matter for compliance with the instructions in the Joint Motion. The case has been subsequently returned to the Board for further adjudication. 1. Entitlement to service connection for a left foot disability, claimed as a residual of cold weather injury, is remanded. 2. Entitlement to service connection for a right foot disability, claimed as a residual of cold weather injury, is remanded. The Veteran contends that he suffers from a current disability of the feet due to in-service cold weather injuries that he suffered in Korea. As noted above, this claim was vacated and remanded by an October 2021 Court Order, which effectuated a Joint Motion for Partial Remand from the parties. The Joint Motion has determined that the Board relied on an inadequate March 2019 VA medical opinion. It notes that "Here, the March 2019 VA examiner did not provide any medical analysis to support the conclusion that Appellant's diagnosis of arthritis in the feet was 'age appropriate' degenerative joint disease (DJD), 'unrelated to prior cold injury.'" The Joint Motion notes that "The examiner failed to demonstrate the application of the examiner's medical knowledge to the case, including why Appellant's foot diagnosis is unrelated to his cold injury." The Joint Motion also states that "the examiner failed to adequately address Appellant's lay reports of continued bilateral foot symptoms since their onset in service." Accordingly, a remand is required so that the Veteran may undergo a new examination and an opinion may be obtained that addresses these deficiencies. The Joint Motion also noted that the Board had found that the Veteran did not have a diagnosis of arthritis. However, "the treatment records show that Appellant has a history of arthritis, mild arthritis in the bilateral feet, and bilateral metatarsalgia." The Joint Motion cited an April 2008 VA podiatry outpatient consultation, a May 2011 VA addendum, and a March 2019 VA cold injury residuals Disability Benefits Questionnaire. On remand, VA will obtain a medical opinion that addresses these diagnoses. The Joint Motion also notes that "the Board failed to discuss whether Appellant showed that his bilateral foot conditions qualify as a disability under Saunders and Wait." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), held that if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability. Wait v. Wilkie, No. 18-4349 found that to establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity. It further notes that "the Board also failed to address favorable evidence indicating that Appellant's foot pain resulted in functional impairment of earning capacity." The Joint Motion cited an August 1991 lay statement, an October 2010 VA treatment record, and the Veteran's August 2011 Decision Review Officer (DRO) hearing testimony. On remand, these concerns must be addressed. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran's records were last obtained. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the nature and etiology of any current left and right foot conditions. The Veteran should be interviewed, and all indicated tests and studies should be accomplished, including x-rays. All findings should be reported in detail. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should diagnose all current disabilities of the left and right feet, expressly diagnosing or ruling out cold weather injury residuals. The examiner should expressly discuss the April 2008 VA podiatry outpatient consultation, the May 2011 VA addendum, and the March 2019 VA cold injury residuals Disability Benefits Questionnaire, which "show that Appellant has a history of arthritis, mild arthritis in the bilateral feet, and bilateral metatarsalgia." For each diagnosed disability, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any such disability is etiologically related to service. If no disability is diagnosed, the examiner should determine whether the Veteran has left or right foot pain that results in functional impairment, and whether it is at least as likely as not (a 50 percent probability or greater) that such functional impairment is etiologically related to service. The examiner should expressly discuss the August 1991 lay statement, the October 2010 VA treatment record, and the Veteran's August 2011 Decision Review Officer (DRO) hearing testimony. The examiner must also discuss the Veteran's lay reports of continuity of bilateral foot symptomatology since service. Any opinion expressed by the VA examiner MUST be accompanied by a complete rationale that includes discussion of the facts of the Veteran's case and pertinent medical principles. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elizabeth Jalley, 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.