Citation Nr: 1309474 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-31 597 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for pes planus (flat feet). REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1987 and from February 2003 to January 2004. The evidence shows the Veteran served in the Army Reserves between 1987 and 2003; however, this service has not been deemed "active duty service" by the service department. See 38 C.F.R. § 3.6. This appeal initially came to the Board of Veterans' Appeals (Board) from an October 2008 rating decision. In June 2011, the Board denied the Veteran's claim. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In October 2012, the Court vacated the Board decision and remanded the Veteran's claim for action consistent with the directives of a memorandum decision. However, while the memorandum decision remanded the issue of service connection for pes planus, the memorandum decision affirmed the Board's denial of service connection for a right ankle condition. As such, that issue is no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that service connection is warranted for pes planus (flat feet). He asserts that he did not have this condition when he joined the military and alleges that he developed pes planus in service while wearing flat bottom boots without an arch support. Service treatment records (STRs) reflect that the Veteran's feet were deemed normal in October 1984 and the Veteran denied any foot trouble on a medical history survey completed in conjunction with the physical. At his separation from active duty in October 1987, the Veteran's feet were again found to be normal by physical examination and he again denied any foot problems. At a periodic physical in September 1991, the Veteran's feet were found to be normal and he again denied any foot problems. In January 1997, the Veteran again denied any foot trouble, but on physical examination it was found that his feet were pronated and pes planus was diagnosed. This was during the Veteran's time in the Army reserves, not during active duty. In fact, there are no subsequent complaints of, or treatment related to, pes planus in the STRs and no showing that pes planus was ever actually diagnosed while the Veteran was on active duty (October 1984 to October 1987 and February 2003 to January 2004). Moreover, a January 2001 medical examination found the Veteran's feet to be normal with a normal arch and the medical officer specifically found no pes planus was present. The Veteran also specifically denied any foot problems on a medical history survey completed at that time. In January 2002, the Veteran was given a "L1" on his PULHES profile indicating normal lower extremities. The Veteran has not provided any lay or medical evidence which documents any continuity of pes planus symptomatology following service. The Veteran has asserted that he has pain in his feet all of the time but he has not asserted that he has continued to have pain or other symptoms related to his pes planus since service and he has not submitted or identified medical evidence that shows complaints or treatment for pes planus since service. The Veteran has also failed to describe any injury to his feet during either active duty for training or inactive duty for training. The post-service evidence shows that the Veteran was treated for pes planus by VA in January 2009 at which time he reported that the Army did not offer arch supports in service. Physical examination revealed grade three pes planus and the Veteran was given prosthetics/inserts for his orthopedic shoes. The final assessment was pes planus. A VA nurse indicated in September 2009 that the Veteran had flat feet for which he began treatment in January 2009 and for which he wears orthopedic inserts daily. In light of the above, because the Veteran was not previously afforded a VA examination, the memorandum decision concluded one should be provided. This should be done. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a foot examination. The Veteran's claims file should be provided and a complete rationale should be provided for any opinion expressed. The examiner should determine if the Veteran has chronic pes planus and, if so, should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the pes planus either began during or was otherwise caused by the Veteran's active military service (October 1984 to October 1987 and February 2003 to January 2004). In doing so, the examiner should specifically consider the following: a) the January 1997 diagnosis of pes planus; b) the fact that the Veteran was not diagnosed with, or in any way treated for, pes planus while on active duty; c) the fact that the Veteran's feet and lower extremities were repeatedly found to be normal on examination during service, including at a January 2001 medical examination; and d) the fact that the Veteran did not present evidence of pes planus until 2009, approximately five years after separating from active duty. The examiner should also explain whether he/she is of the opinion that the diagnosis of pes planus in 1997 was in error. If not, the examiner should explain both whether the Veteran's pes planus resolved between 1997 and 2001 and, if not, whether there is any indication that the Veteran's pes planus was permanently aggravated (meaning a permanent worsening of the pes planus, beyond the natural progression of the condition) during the Veteran's active duty service from February 2003 to January 2004). A review of the Court's decision in this case may be of some help to the examiner in this case. 241156429 2. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). _________________________________________________ JOHN J. CROWLEY 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).