Citation Nr: 25005013 Decision Date: 04/14/25 Archive Date: 04/14/25 DOCKET NO. 19-31 341 DATE: April 14, 2025 REMANDED Service connection for a right-foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1979 to June 1982, for a period including October 1990 to April 1991 (the separation document for this period is illegible), from December 1995 to July 1996, and from January 2004 to March 2005, with additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal of the October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the claim in a July 2023 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMR), the parties agreed to vacate the Board's July 2023 decision with regard to this claim and remand the case to the Board for additional development. The JMPR was incorporated by reference in a Court order dated in July 2024. In November 2024, the Board remanded the issue to the RO for development. Following additional development, the issue is once again before the Board for adjudication. 1. Service connection for a right-foot disability. In pertinent part, the November 2024 Board decision directed the examiner to consider: A July 2014 VA treatment record noting the Veteran's wife's report that he had walked using a different part of his right foot since his right-ankle surgery. and The Veteran's report during the December 2019 VA examination that he had been walking differently since his right-ankle surgery. The Veteran underwent a compensation and pension examination in December 2024. The examiner opines against nexus. The examiner supports this opinion with the following rationale: The conditions of right foot disability and residuals of right Achilles tendon rupture are not medically related. The right foot disability is a separate entity entirely from the residuals of, right Achilles tendon rupture and unrelated to it. Records are silent for any ongoing medical care for the right Achilles tendon rupture since 1998. There is no evidence of chronicity of the claimed condition A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. The examiner did not remark on the reports of symptoms from 2014 and 2019 from the Veteran and his wife. When the RO observed this omission, it sought an addendum opinion from the examiner. The examiner responds in writing in February 2025: Where the determinative issue involves causation, competent medical evidence to the effect the claim is possible or plausible is required. The lay statements do not meet this burden by merely presenting lay opinions because such evidence does not constitute competent medical authority. The veteran, wife, and service member have not been shown to have the requisite medical training as to opine etiology. The lay statements, standing on their own, are insufficient upon which to establish a relationship between a current disability. This response is problematic. First, the examiner was not asked to consider a lay person's opinion on a medical issue. Rather, the examiner was asked to consider competent reports of symptoms; the examiner has not done so. This omission constitutes a lack of substantial compliance with remand directives from the November 2024 Board decision. Consequently, a remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the examiner's initial rationale supporting a negative nexus opinion appears to conflate continuity of symptoms with continuity of care. According to 38 C.F.R. § 3.303(b), the legal standard is not continuity of care, but continuity of symptomatology. Continuous symptoms, not continuous complaints or treatment for them (i.e., care), are what VA regulations require. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). See also Savage v. Gober, 10 Vet. App. 488, 496 (1997) (An in-service diagnosis is not necessarily required for service connection). The matters are REMANDED for the following action: 1. Arrange for an appropriate clinician to provide an addendum opinion regarding the etiology of the residuals of the Veteran's right-foot condition. The entire claims file must be made available to and be reviewed by the examiner. If a reexamination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner is directed to consider all relevant evidence but to pay particular attention to and remark in writing on: (a.) The Veteran's report during the December 2019 VA examination that he had been walking differently since his right-ankle surgery. (b.) A July 2014 VA treatment record noting the Veteran's wife's report that he [the Veteran] had walked using a different part of his right foot since his right-ankle surgery. Next, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right-foot disability was incurred in or is otherwise related to his active Federal service. 2. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Drum, Ryan S. 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.