Citation Nr: 1010169 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 09-43 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for bilateral pes planus with spurs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from February 1952 to January 1954. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO) which denied service connection for bilateral pes planus with spurs. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in January 2010; the hearing transcript has been associated with the claims file. The Board notes the RO denied a claim for service connection for onychomycosis of the toenails, claimed as nail fungus, in a May 2007 rating decision. The Veteran submitted an informal claim for service connection for problems with the feet in May 2008. The RO/AMC should clarify with the Veteran whether he intended to reopen a claim for service connection for onychomycosis of the toenails based on new and material evidence. The matter is accordingly referred to the RO/AMC. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran was afforded a VA examination in July 2007. He was diagnosed with congenital pes planus of the bilateral feet and plantar fasciitis secondary to his pes planus. The VA examiner noted that the Veteran's enlistment examination documented pes planus, but did not provide an opinion as to whether the Veteran's pes planus was aggravated by service. The Board finds, therefore, that a remand for a supplemental VA opinion is necessary to address the issue of aggravation. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should refer the case to an appropriate VA orthopedic examiner for a supplemental opinion. If the examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, the Veteran should be afforded such. The claims folder should be made available to the examiner for review prior to examination. The examiner must review the entire claims file to include available service records. In rendering an opinion, the examiner should also consider the Veteran's lay statements, in which he describes cold exposure and bilateral foot pain in service. The examiner should state whether the Veteran's pes planus permanently increased in severity during service, and if so, whether such worsening constituted either the natural progression of the disorder, OR whether such worsening constituted chronic aggravation due to service. The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide clear rationale for his or her opinion with references to the evidence of record and must provide a discussion of the facts and medical principles involved. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).