Citation Nr: 18160501
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 11-00 999
DATE:	December 27, 2018
The claim of entitlement to service connection for a right ankle disorder, claimed as secondary to service connected chronic right and left foot strain with metatarsalgia, is remanded.
The claim of entitlement to a temporary total rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30, is remanded.
The Veteran had active duty service from April 1968 to April 1970. The Veteran died in August 2011, and the appellant is his surviving spouse.
This appeal to the Board of Veterans’ Appeals (Board) arose from a November 2009 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, denied service connection for a right ankle disability secondary to a service-connected right foot condition, as well as denied a claim for a temporary total rating due to right ankle surgery, pursuant to 38 C.F.R. § 4.30. In January 2010, the Veteran filed an NOD. An SOC was issued in December 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in January 2011.
After the Veteran’s death in August 2011, the appellant was deemed a proper substituted claimant in February 2015. See 38 U.S.C. § 5121A. 
In June 2015, the appellant testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.
In August 2015, the Board remanded the claims on appeal to agency of original jurisdiction (AOJ). After accomplishing further action, the AOJ continued to deny the claims, and returned these matters to the Board.
In June 2017, the Board, inter alia, denied the service connection claims for right ankle disability, secondary to right foot strain with metatarsalgia, as well as denied entitlement to a temporary rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30.  
The Veteran appealed the Board’s June 2017 denials to the United States Court of Appeals for Veterans Claims (Court).  In July 2018, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by representatives for both parties, vacating the Board’s June 2017 denials, and remanding the claims for further proceedings consistent with the Joint Motion.  
Pertinent to the claims remanded by the Court, in the Joint Motion, the parties indicated that the Board failed to consider whether the Veteran’s right ankle claim was secondary to his service-connected left foot strain with metatarsalgia.  In this regard, the parties noted that the October 2009 VA examination noted the Veteran’s left foot disability caused instability and ankle sprains; and that the Veteran raised this theory in a March 2015 statement and during the June 2015 Board hearing. 
In addition, the parties agreed that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a).  VAOPGCPREC 1-2017.  See also Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). Given the medical evidence which shows that the Veteran’s right ankle was affected by his obesity, to include in the October 2009 and November 2016 VA opinions, the Board finds that an opinion addressing whether his obesity was caused by his service-connected right and left foot disabilities, and thereby causing or aggravating his right ankle disorder, is necessary. 
Given the above, the Board finds that remand is necessary to again attempt to obtain an opinion addressing the etiology of the Veteran’s right ankle disability. To this end, the AOJ should arrange to obtain such opinion from the physician who provided the November 2016 opinion or, if necessary, from another appropriate physician based on claims file review, if possible.  
Also, with respect issue of entitlement to a temporary total rating for convalescence following right ankle surgery, pursuant to 38 C.F.R. § 4.30, as noted by the parties to the Joint Motion, this issue is intertwined with this issue and, therefore, must also be remanded. See Smith v.  Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (explaining that, “in the interests of judicial economy and avoidance of piecemeal litigation,” claims that are “intimately connected” should be adjudicated together). Hence, this matter is being remanded, as well.
Prior to obtaining the above-noted medical opinion, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding pertinent records.  
As for VA records, the claims file reflects that the Veteran received treatment from the VA Portland and Roseburg Medical Centers (VAMC), and that records dated up to the Veteran’s August 2011 death have been associated with the claims file.  en the Veteran passed. However, the appellant indicated that the Veteran received care from the VA clinic in Eugene, Oregon, from 1999-2011; however, records prior to 2009 have not been associated with the record. Hence, the AOJ should obtain these records.
The AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly regarding private (non-VA) treatment), explaining that she has a full one-year period for response.  See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) clarifying that VA may decide a claim before the expiration of the one-year notice period). In this regard, the Board notes that in a March 2018 statement, the appellant indicated her husband was treated by Kaiser Permanente, Dr. Dallas, Dr. Williams, Dr. Conti, Harmony Health Chiropractic and massage, North Hill Chiropractic, and Thiede Chiropractic. 
Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159.
The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the matters on appeal.
The matters are hereby REMANDED for the following action:
1. Obtain all outstanding records of VA hospitalization, evaluation and/or treatment of the Veteran (to include from the VA clinic in Eugene, Oregon) dated from 1999 to 2011.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.
2.  Send to the appellant and her representative a letter requesting that the appellant provide sufficient information concerning, and if necessary, appropriate authorization to enable VA to obtain, any additional evidence pertinent to one or more claims the matters on appeal.  Specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) records, to include from Kaiser Permanente, Dr. Dallas, Dr. Williams, Dr. Conti, Harmony Health Chiropractic and massage, North Hill Chiropractic, and Thiede Chiropractic.
Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the claims within the one-year period).
3.  If the appellant responds, assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses from each contacted entity has been associated with the claims file, arrange to obtain an addendum opinion addressing the relationship from the clinician who provided the November 2016 opinion, or, if necessary, another appropriate physician.
The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the addendum opinion/examination report should include discussion of the Veteran’s documented medical history and assertions. 
The physician should render opinion, consistent with sound medical judgment, addressing the following:
Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was (a) caused or (b) aggravated (worsened beyond the natural progression) by the Veteran’s service-connected right and left foot strain with metatarsalgia.
In addressing the above, the examiner must consider and discuss whether the ankle disability was at least as likely as not caused or aggravated by the Veteran’s obesity/weight gain as a manifestation of the service-connected right and left foot strain. 
If such aggravation is found, the physician must determine the level of severity of the right ankle disability before it was aggravated by the obesity/weight gain potentially caused by his service-connected right and left foot disabilities.  In doing so, the examiner must look at medical records created before the onset of the aggravation.  If no such records are available, the examiner must consider the earliest medical records created after the estimated date of onset of aggravation.
In rendering the requested opinions, the physician must consider and discuss all medical and other objective evidence of record, to include the to include the October 2009 VA examiner’s statement that the Veteran’s left foot caused instability and ankle sprains, and the October 2009 and November 2016 VA examiners’ comments that the Veteran’s obesity contributed to his right ankle disability; as well as all lay assertions, to include the Veteran’s and the appellant’s competent assertions as to the nature, onset and continuity of the Veteran’s symptoms. 
The physician is advised that the late Veteran and appellant are/were each competent to report symptoms experienced and observed, respectively, and that such reports must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why.
Complete, clearly-stated rationale for the conclusions reached must be provided.
5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998)
6. After completing the above requested action, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority.
Veterans Law Judge
Board of Veterans’ Appeals

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