Citation Nr: 22018997 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-56 759 DATE: March 31, 2022 REMANDED Entitlement to service connection for right foot hallux valgus with degenerative arthritis, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for left hip trochanteric pain syndrome, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for right hip trochanteric pain syndrome, to include as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1987 to September 1992 and from August 1995 to April 1996 with additional service in the Reserves until 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 Board Decision, the above-referenced claims were remanded to the RO for further evidentiary development and readjudication. The RO has not substantially complied with the Board's remand instructions, so the Board must again remand this matter. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for right foot hallux valgus with degenerative arthritis, to include as secondary to service-connected disabilities The Veteran has asserted entitlement to service connection for her right foot hallux valgus with degenerative arthritis on a direct basis as well as on a secondary basis. See July 2021 Board Decision (noting the Veteran's initial claim of entitlement to service connection primarily on a secondary basis, but also discussing her repeated allegations during the appeal that service connection on a direct basis is also warranted); November 2016 VA Form 21-4138 (alleging that the disabilities on appeal "are conditions associated [with] and developed during years of military service"); November 2016 VA Form 9 ("They keep trying to associate all issue[s] to my foot. That is not a correct assessment and many are associated to activity duty for 6 years and combat."); but see February 2016 Notice of Disagreement ("My right foot hallux valgus with degenerative arthritis is secondary to my service-connected left foot. . . There was no injury to my foot or any incident, it became problematic because I have alter[ed] my gait for my left foot."). Pursuant to the Board's 2021 July 2021 remand instructions, the RO provided a VA examination with respect to the claimed right foot condition. The examiner noted that the Veteran "now claims that the right foot became problematic in 1992" and is "unaware as to how the right foot was not evaluated in 1992." See November 2021 VA Examination (Foot). The examiner opined that "Veteran's mild right hallux valgus condition is a result of the same factors that affected the left great toe." Of course, the left hallux valgus is service-connected, which at least implies her contention of right foot pain since 1992 could be credible and supported by the medical record. The Board also notes there is significant evidence against that conclusion, including the medical records specifically noting a normal right foot in August 2004. In addition, and dispositively, the Board previously determined that the Veteran was entitled to a VA examiner's opinion on the issue of direct service connection. See July 2020 Board Decision. The Board has previously determined that the October 2020 VA examiner's opinion was based on inaccurate facts, particularly his assumption that "There is no documentation of a right foot condition while in service, or after separation from service." Therefore, the Board concluded that the October 2020 VA examiner's opinion was inadequate and a new examination and opinion were warranted. Unfortunately, the Board only directed the RO to obtain and the RO only sought opinions with respect to secondary service connection. The Board has previously determined (and the record establishes) that the Veteran has raised the theory of direct service connection and that the Veteran is entitled to an adequate opinion on that theory. Remand is necessary to obtain an adequate opinion with respect to whether the Veteran's current right foot disability is related to her active service. 2. Entitlement to service connection for left hip trochanteric pain syndrome, to include as secondary to service-connected disabilities 3. Entitlement to service connection for right hip trochanteric pain syndrome, to include as secondary to service-connected disabilities The July 2021 Board Decision directed the RO to obtain opinions regarding whether the Veteran's left and/or right hip disabilities were proximately caused by or were aggravated by her service-connected disabilities. The VA examiner's answer to the posed questions was: "There is no right hip [or left hip] disability, upon objective evaluation, November 3, 2021. Nexus is not established." See November 2021 VA Examiner's Opinion. The Board has already noted that "the 2015 VA examination report clearly provided the diagnosis of bilateral trochanteric pain syndrome (includes trochanteric bursitis) and noted that she reported that her hips began hurting many years ago." See July 2021 Board Decision. Moreover, the November 2021 VA examiner did not disagree with the 2015 diagnosis, but opined that the condition had "resolved." In these circumstances, the Veteran had left and right hip disabilities during the appeal period, so an adequate opinion addressing whether the diagnosed right and left hip disabilities are secondary to her service-connected disabilities is necessary even if they have now resolved. The Board must remand these matters to obtain adequate opinions regarding whether the Veteran's right or left hip disabilities were caused or aggravated by her service-connected disabilities. In addition, the Board previously directed the RO to obtain opinions with respect to direct service connection, see July 2020 Board Decision, and that the direct service connection opinions with respect to the left and right hip were based on inaccurate facts and so inadequate. See July 2021 Board Decision. The Board must remand the matters for this reason as well. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2022 to the Present. 2. Obtain an addendum opinion regarding her right foot hallux valgus with degenerative arthritis. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the Veteran's right foot hallux valgus with degenerative arthritis at least as likely as not related to service, including an alleged altered gait during service due to her in-service left foot complaints? A rationale must be provided for all opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. As part of the rationale, the examiner must specifically address and discuss: The Veteran's service treatment records documenting ongoing left foot pain, large bunion, and hallux valgus of the left foot; December 2004 National Guard medical records noted her left foot hallux valgus/bunion led to her being physical incapable of performing her duties; August 2004 medical letter indicated issues as to the left foot, but also specifically stated that "the right foot appears normal. No evidence of bunion or hallux valgus deformity of the right foot"; April 2006 private medical record noted: Gait analysis demonstrated moderate abnormal pronation which likely is the cause of the previously noted deformities; March 2007, she reported bilateral foot pain and she stated she has had this pain for many years. The assessment was bilateral foot pain, mostly in the left foot; January 2008, she reported that she was limited in walking due to her feet and leg pain. It was noted she had bilateral foot pain; October 2014 VA examination noted the Veteran's diagnosis for left foot hallux valgus. She reported her right foot has gotten worse and is being treated for her feet at the VAMC; May 2015 X-ray: Both feet: mild right hallux valgus deformity. Moderate left hallux valgus deformity. Early bilateral first metatarsophalangeal osteoarthritis; May 2015 VA examination confirmed the diagnosis of hallux valgus in the right foot and left foot, as well as bilateral arthritis, and the Veteran reported pain in both feet and she reported they feel tingly and she has warmth in the great toe area and plantar aspects of the feet, and pain in both first MTP joints; 2016 NOD, the Veteran stated that her right foot became problematic due to her altered gait for her left foot and that she has altered her gait significantly due to her left foot pain which has impacted her right foot; and The October 2020 VA examination noted diagnoses of left foot hallux valgus and right foot hallux rigidus and the Veteran reported the pain began around 2000. 3. Schedule the Veteran for a VA examination for her left and right hip disabilities. The examiner must review the claims file. Regardless of the findings on the current examination, the examiner should provide an opinion with respect to the bilateral trochanteric pain syndrome (includes trochanteric bursitis) diagnosed by the 2015 VA examiner. The examiner is asked to provide a response to the following with respect to each disability of the left and right hips: Right Hip a. Is the Veteran's right hip disability at least as likely as not related to service, including an alleged altered gait during service due to her in-service left foot complaints? b. If the answer to (a) is negative, is it at least as likely as not (50 percent or greater probability) that the Veterans' right hip disability was proximately caused by her service-connected disabilities, to include the left foot disability, low back disability, and bilateral knee disabilities? c. If the answer to (b) is negative, is it at least as likely as not (50 percent or greater probability) that the Veterans' right hip disability was aggravated by her service-connected disabilities, to include the left foot disability, low back disability, and bilateral knee disabilities? Left Hip d. Is the Veteran's left hip disability at least as likely as not related to service, including an alleged altered gait during service due to her in-service left foot complaints? e. If the answer to (d) is negative, is it at least as likely as not (50 percent or greater probability) that the Veterans' left hip disability was proximately caused by her service-connected disabilities, to include the left foot disability, low back disability, and bilateral knee disabilities? f. If the answer to (e) is negative, is it at least as likely as not (50 percent or greater probability) that the Veterans' left hip disability was aggravated by her service-connected disabilities, to include the left foot disability, low back disability, and bilateral knee disabilities? A rationale must be provided for all opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. As part of the rationale, the examiner must specifically address and discuss: The Veteran's consistent reports that her hip pain began in service and the fact that her knees and back are now directly service-connected due to the pain she had in her back and knees in service; April 2000, an X-ray for her hips was requested as there was a question of degenerative changes at the hip, but the impression was normal; May 2013, June 2014, May 2015, and January 2016 records show the Veteran complaining of bilateral hip joint pain (prior to 2017); The 2015 statement from Dr. H.R., that the Veteran has generalized tenderness during active range of motion in the hip joints and opined that "this discomfort appears to be related to the long standing history of hallux valgus left foot and guarding and change in gait that has occurred secondary to same"; The May 2015 VA examination diagnosis of bilateral trochanteric pain syndrome (includes trochanteric bursitis) and the Veteran reported that they started hurting many years ago; The 2015 medical opinion that "there is nothing to suggest her gait was altered in a way which would cause or aggravate any of these conditions"; May 2015 X-rays indicate no significant degenerative changes in either hip; The 2016 NOD statement from the Veteran that her left foot has altered her gait significantly; December 2017, she reported right back and hip pain and the hip pain increases with mobility and that this has been a chronic issue; December 2017, it was noted that low back pain with radiation to right hip joint associated with occasional numbness and tingling sensation of right thigh; The 2018 VA examiner stated that her back pain and mid-thoracic radiates to her hip area; and (Continued on the next page) In the 2020 VA examination, the Veteran stated that the condition began with progressive hip pain since 1999 and she now had pain over the outer hip area and her symptoms now are lateral right hip and left hip pain with the right greater than the left. She underwent physical therapy in 2019. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.