Citation Nr: 22018533 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 09-23 498 DATE: March 29, 2022 REMANDED Entitlement to service connection for a right foot disability, other than pes planus, to include as secondary to service-connected disease or injury is remanded. REASONS FOR REMAND The Veteran had active service from September 1973 to October 1975. He appealed a May 2007 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in April 2010 before a Veterans Law Judge (VLJ) who has since retired. A transcript is of record. In November 2014 and November 2021, VA sent the Veteran letters offering a new hearing. He has not since requested a new hearing. This case was remanded by Board for additional development in September 2010, February 2015, November 2015, and July 2019. In a December 2020 decision, the Board denied the Veteran's service connection claim. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In November 2021, the Court granted an October 2021 Joint Motion for Remand (JMR) filed by representatives for both parties and remanded the claim to the Board for further proceedings consistent with the JMR. Preliminarily, the Board observes that there are outstanding records. VA treatment records dated in January 2014 note that medical records had been scanned into Vista Imaging; however, the Board does not have access to Vista Imaging and the records are otherwise not in the claims file. The nature and relevance of these records is not readily apparent. Additionally, the November 2019 examiner reviewed the Computerized Patient Record System (CPRS) in addition to the Veteran's claims file. However, the Board does not have access to CPRS. Thus, remand is necessary to obtain any records reviewed by the November 2019 VA examiner that are not accessible to the Board, as well as any relevant records stored in Vista Imaging. The Veteran seeks service connection for a right foot condition other than pes planus. He asserts that he injured his right foot and ankle during service and has experienced symptoms since. See, e.g., July 2006 statement, April 2010 Board Hearing Tr. at 4-5. The Veteran was most recently provided a VA examination in November 2019, and at that time was noted to have diagnoses of hammer toes, hallux valgus, and ankle arthritis. The examiner opined that the Veteran's conditions were not related to service or to his service-connected residuals of an accidental gunshot wound of the left leg with retained foreign body (RFB) (left leg GSW). In the October 2021 JMR, the parties agreed that the November 2019 examination report and opinion were inadequate for rating purposes, as the examiner did not address several of the Veteran's reports of right foot and ankle pain allegedly caused by, and experienced since, service. See Miller v. Wilkie, 32 Vet. App. 249, 262 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). The JMR directed the Board to remand the claim for a new examination or clarifying opinion that reconciled the negative nexus opinion with the lay statements reporting foot and ankle related pain since service. The JMR cited several documents of record the parties deemed relevant, including treatment records dated in December 2005, August 2006, July 2007, December 2011, June 2013, and January 2016, as well as the April 2010 Board hearing transcript. The essence of the assertions contained in these documents is that during service the Veteran fell and injured his right foot and ankle, was subsequently placed on light duty, or alternatively not treated at all, and experienced symptoms since service. Despite the Veteran's reports noted above, a February 1976 VA general medical examination report indicated the Veteran did not report any right foot conditions nor were any noted by the examiner. Additionally, a physical examination report of the Veteran dated in June 1987 indicated that his extremities demonstrated no deformities or limitation of movement. Nevertheless, to comply with the Court's November 2021 order, remand is necessary to obtain a medical opinion that sufficiently accounts for the Veteran's lay reports. This matter is REMANDED for the following actions: 1. Obtain and associate with the record outstanding VA treatment records, to include records from November 2019 forward, as well as any outstanding relevant records viewable in CPRS and Vista Imaging. 2. After any outstanding records have been received, refer the claims file to an appropriately qualified clinician, who has not previously reviewed the claims file, for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician should identify any right foot or ankle conditions present during the appeal period, other than pes planus, to include hammer toes, hallux valgus, inferior calcaneal spur, and degenerative arthritis of the ankle. For each identified condition, the reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not that the condition had its onset during service or is otherwise related to service? (b.) Is it at least as likely as not that the condition was caused by his service-connected left leg GSW? (c.) Is it at least as likely as not that the condition was aggravated by his service-connected left leg GSW? For the purposes of this opinion, the reviewing clinician is to apply the proper aggravation standard, which is that any degree of worsening of a condition by a service-connected condition is sufficient to establish aggravation in this case. The reviewing clinician is advised that lack of contemporaneous service treatment records documenting complaints related to a right foot or ankle condition during active service, alone, is an insufficient rationale for a negative opinion. Furthermore, all relevant lay evidence of record must be addressed, including but not limited to treatment records dated in December 2005, August 2006, July 2007, December 2011, June 2013, and January 2016, as well as the April 2010 Board hearing transcript. Additionally, the reviewing clinician's attention is directed to the February 1976 and June 1987 examination reports. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. ARIF SYED Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.