Citation Nr: 1306865 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 10-06 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a foot condition, to include pes planus. 2. Entitlement to service connection for a bilateral ankle condition. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran was afforded a Video Conference Hearing before the undersigned Veterans Law Judge in January 2012. A written transcript of this hearing was prepared and incorporated into the evidence of record. 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 A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of service connection for pes planus and a bilateral ankle condition. A. Pes Planus The Veteran seeks service connection for a foot condition, to include pes planus. The Veteran contends that his pre-existing foot condition was aggravated during his period of active duty. The Veteran's service treatment records reflect that on his June 1972 enlistment examination, the examiner noted that the Veteran had a history of pes planus, mild. The Veteran's pes planus was not considered disabling and he was found to be fit for basic training and active service. Nevertheless, because pes planus was noted upon entry into service, the Board finds that this foot condition existed prior to service. Because there is evidence of bilateral pes planus in the pre-induction physical examination report and no competent evidence to the contrary, the statutory presumption of soundness is rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Accordingly, the Board must consider whether the Veteran's pes planus was aggravated in service. Id. The Veteran's service treatment records show that he complained of pain in both of his feet. At that time, he was referred to podiatry for further evaluation. In an August 1972 record, the physician noted that the Veteran had minimal pes planus in his feet. The Veteran was afforded a VA examination in November 2009. After examining the Veteran, the examiner stated that the Veteran noted that his feet post-military were back to "normal," his preliminary state, and that they remained stable for many years, with the last five years getting worse. This time lag, from discharge from service made service less likely than not a permanently aggravating cause. Additionally, the Veteran submitted an April 2011 letter from a private doctor of podiatric medicine. The physician concluded that the marked pes planovalgus deformity aggravated by activities, which he was unable to participate with corrections obtained earlier than boot camp, were greatly exacerbated by aggressive boot camp training to a point where conservative treatment was no longer possible. However, the private physician did not offer a rationale or basis for his finding that the Veteran's bilateral pes planus was aggravated by his boot camp training. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence]; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects 'clinical data or other rationale to support his opinion']. Additionally, both the November 2009 and April 2011 private physician did not provide a medical opinion addressing the specific legal criteria of "clear and unmistakable evidence," which is necessary to satisfy the applicable legal standards in this case. Without further clarification, the Board is without medical expertise to determine whether there is "clear and unmistakable evidence" (obvious, manifest, undebatable) that the Veteran's pre-existing pes planus was aggravated beyond the natural state of progression by his time on active duty. Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Therefore, a new VA examination and opinion is necessary in order to determine if service connection is warranted for the Veteran's pes planus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). B. Bilateral Ankle Condition The Veteran's service treatment records noted pain and swelling of the right ankle. The Veteran was afforded a VA examination in November 2009. The examiner concluded that the Veteran's ankle problems predated the service and were back to baseline post-service without any significant change until the last few years. The prolonged time span since service, made it less likely than not as being caused by service. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. See 38 U.S.C.A. § 1111 (West 2002). Review of the Veteran's June 1972 service entrance examination was completely negative for any complaints of or previous diagnoses of any bilateral ankle condition. Although there was evidence that indicated that the Veteran's ankle disability pre-existed his enlistment, it consisted exclusively of statements made by the Veteran himself. The Board observes that lay statements, standing alone, are insufficient to rebut the presumption of soundness which arose when the Veteran was accepted for service. Crowe v. Brown, 7 Vet. App. 238 (1999). In short, there is no contemporaneous medical evidence that the Veteran suffered from a bilateral ankle condition prior to his enlistment. There must be clear and unmistakable evidence of record that demonstrates that an injury or disease existed prior to service. Therefore, an additional VA examination and opinion must be obtained before the Board can make a decision pertaining to whether service connection is warranted for the Veteran's bilateral ankle condition. Accordingly, the case is REMANDED for the following action: 1) Ensure that the Veteran's VA outpatient treatment records are current. 2) After the foregoing, the RO/AMC should arrange for the Veteran to undergo an in-person VA examination to evaluate his pes planus. The claims file and a copy of this remand must be made available to and reviewed by the examiner, in conjunction with the examination. All necessary tests should be conducted. The examiner is asked to opine as to whether the Veteran's pre-existing pes planus increased in severity in-service. If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition. The examiner must review and discuss the Veteran's service treatment records, to include the August 1972 complaints of foot pain; VA outpatient treatment records; private treatment records; the November 2009 VA examination report; the April 2011 private physician letter; the January 2012 hearing transcript; and any other relevant information. Furthermore, the examiner should also discuss the Veteran's lay statements regarding chronicity of symptomatology when discussing the offered opinion. Additionally, the examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Additionally, the RO/AMC should arrange for the Veteran to undergo an in-person VA examination to determine the nature and etiology of his current bilateral ankle disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner, in conjunction with the examination. All necessary tests should be conducted. The examiner should diagnose any bilateral ankle disability found to be present, and answer the following: Did the Veteran's bilateral ankle disorder(s) clearly and unmistakably (obvious or manifest) pre-exist his entry into active duty? A. If there is clear and unmistakable evidence that the Veteran's bilateral ankle disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder(s) did not undergo an increase in the underlying pathology during service. If there was an increase in the severity of the Veteran's disorder(s), the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. B. If there is no clear and unmistakable evidence that any current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the Veteran's current ankle disorder had its onset in service or is related to any in-service disease, event, or injury. The examiner must review and discuss the Veteran's service treatment records that noted pain and swelling of the right ankle, VA outpatient treatment records, private treatment records, the November 2009 VA examination report, the January 2012 hearing transcript, and any other relevant information. Furthermore, the examiner should also discuss the Veteran's lay statements regarding chronicity of symptomatology when discussing the offered opinion. Additionally, the examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4) Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the AMC should readjudicate the Veteran's claims. If a claim is denied, the AMC should then provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ MARJORIE A. AUER 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) (2012).