Citation Nr: 23005276 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 12-05 650 DATE: January 27, 2023 REMANDED Entitlement to service connection for right great toe amputation, to include as secondary to service-connected bilateral pes planus with hallux valgus and degenerative joint disease of the metatarsophalangeal joint of both great toes (bilateral foot disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to October 1988. The Veteran passed away during the pendency of this appeal in July 2016. The Appellant is the Veteran's surviving spouse, who was verified as the substituting party in May 2018. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from a Department of Veteran Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes this matter was previously remanded by the Board in September 2018, January 2021, June 2021, November 2021, and September 2022 for additional medical clarification and development. It now returns to the Board for further consideration. Unfortunately, the Board finds that further action by the agency of original jurisdiction (AOJ) on the claim is warranted, even though such will, regrettably, further delay an appellate decision on this matter, discussed in full below. The Board first remanded the matter in September 2018 to further determine the nature and etiology of the Veteran's right great toe amputation, as to whether it is at least as likely as not that the Veteran's right great toe amputation had its onset during or is otherwise related to any event or injury during active duty military service, and; whether it is at least as likely as not that the Veteran's right great toe amputation was caused or aggravated by a service-connected disability. Following the September 2018 Board Remand, a May 2020 VA medical clinician provided a medical opinion. In January 2021, the Board found the May 2020 medical opinion insufficient; that the Board has a duty to ensure compliance with the terms of the remand, see Stegall v. West, 11 Vet. App. (1998); that the VA examination opinions were inadequate, see Barr v. Nicholson, 21 Vet. App. (2007); and that an adequate medical opinion must offer a complete rationale for its conclusions, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The matter was remanded for a second time for a new medical opinion to determine the nature and etiology of the Veteran's right great toe amputation. Per the January 2021 Board Remand, February 2021 and March 2021 VA medical opinions were obtained to respond to the remand directives. The medical opinions were found to be inadequate and did not address the questions in the prior directives. See Barr, supra; see also Stegall, supra. Consequently, in June 2021, the Board remanded the matter for a third time in an attempt to obtain adequate medical opinions regarding the nature and etiology of the Veteran's right great toe amputation. Following the June 2021 Board Remand, a July 2021 VA medical opinion was provided, which the November 2021 Board Decision found to be inadequate. Consequently, the November 2021 Board Decision remanded the matter for a fourth time. See Barr, supra. Per the November 2021 Board Remand, in December 2021 and May 2022, the VA provided additional medical opinions. The September 2022 Board Decision found the December 2021 and May 2022 medical opinions inadequate and conclusory for adjudicative purposes. See Nieves-Rodriguez, supra. Therefore, the Board remanded the matter for additional medical development. The September 2022 Remand directive specifically asked the clinician to opine as to direct service connection whether it is at least as likely as not that Veteran's right great toe amputation is related to active-duty service. Entitlement to service connection for right great toe amputation, to include as secondary to service-connected bilateral pes planus with hallux valgus and degenerative joint disease of the metatarsophalangeal joint of both great toes (bilateral foot disability) is remanded. The Appellant contends the Veteran's right great toe amputation is due to his military service. In the September 2022 Board Remand, the Board requested the RO obtain an adequate medical opinion addressing both theories of direct service connection, as well as secondary service connection regarding the Veteran's right great toe amputation. With regards to secondary service connection, the Board specifically requested that a VA clinician opine whether it is at least as likely as not that Veteran's right great toe amputation was caused or aggravated by his service-connected foot disabilities (i.e., bilateral pes planus with hallux valgus and/or degenerative joint disease of the metatarsophalangeal joint of both great toes (bilateral foot disability), left and right lateral thigh, post operative left and right achilles tendonitis, and scar status post bilateral achilles tendonitis). Following the September 2022 Board Remand directives, an October 2022 VA medical opinion was produced. In addressing whether secondary service-connection has been met, the VA medical clinician opined that the Veteran's right great toe amputation is less likely caused or permanently aggravated by his service-connected foot conditions. The Board finds the October 2022 VA medical opinion inadequate for adjudicative purposes for secondary service connection. As previously found in prior Board remands, the October 2022 VA medical clinician's opinion is non-responsive to entitlement to secondary service connection on the basis of aggravation. Specifically, the clinician's opinion used the improper legal standard of "permanent aggravation". In Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). Rather "permanently aggravated" is the standard used for service connection of a disorder noted on the medical examination upon entry into service. 38 C.F.R. § 3.306. Secondary service connection is warranted for "any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence." See id. (citing Allen v. Brown, 7 Vet. App. 439, 448 (1995)). Here, the Board cannot assume that the examiner meant that the Veteran's right great toe amputation is not aggravated, permanently or incrementally, by his service-connected foot disabilities. The clinician did not adequately or fully address the aggravation prong of the secondary service connection theory of entitlement. The U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion which focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. When causation and aggravation are at issue, the Board must ensure that the opinion addresses each. 38 C.F.R. § 3.310(b); El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). As such, a remand is necessary to obtain a new medical opinion that provides an adequate rationale as to whether the Veteran's right great toe amputation was caused or aggravated by his service-connected foot disabilities. A remand by the Board confers upon the Appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, further development is necessary. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from the October 2022 VA examiner. If the October 2022 VA examiner is unavailable, an opinion should be obtained from another qualified medical profession. The claims file should be made available to the examiner. Upon review of the record, the examiner should respond to the following: (a.) Whether it is at least as likely as not that the Veteran's right great toe amputation was aggravated by the Veteran's service-connected foot disabilities (i.e., bilateral pes planus with hallux valgus and mild degenerative joint disease, left and right lateral thigh, post operative left and right achilles tendonitis, and scar status post bilateral achilles tendonitis). Note that aggravation in this context means any incremental increase in the non-service-connected disability (i.e., any additional impairment of earning capacity) caused by the service-connected disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the likelihood is at least approximately balanced or nearly equal, if not higher. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Smith 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.