Citation Nr: 1310892	
Decision Date: 04/02/13    Archive Date: 04/11/13

DOCKET NO.  08-34 114	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee



THE ISSUE

Entitlement to service connection for bilateral pes planus.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel




INTRODUCTION

The Veteran served on active duty from January 2000 to December 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran requested a Travel Board hearing, and one was scheduled in March 9, 2010; however, the Veteran failed to appear for that hearing.  As he has not provided good cause for his failure to appear or requested another hearing, the hearing request is deemed withdrawn.  38 C.F.R. § 20.704(d) (2012).

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In January 2012, the Board denied the issue on appeal.  The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court).  In a Joint Motion for Remand (JMR) to the Court, the parties requested that the Board's decision be vacated in part and remanded this matter to the Board.  An October 2012 Court Order granted the motion.

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

In its January 2012 remand, the Board relied on a December 2007 VA examination and denied service connection for bilateral pes planus.

The parties to the Joint Motion found that the December 2007 VA examination was inadequate for rating purposes.  Specifically, it was noted that the examiner did not provide an opinion as to whether the pes planus was aggravated by service.  The parties noted that although the December 2007 VA examination report did not contain an opinion regarding aggravation, the Board relied on the absence of an opinion as evidence that there was no worsening of the pes planus during service.  The parties agreed that the Board erred by relying on the December 2007 VA examination report that did not address the issue of aggravation.

A new VA examination and opinion is therefore required to achieve compliance with an October 2012 Court Order. See 38 C.F.R. § 4.2 (VA examination reports-corrective action); Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the claimant the right to compliance with remand orders).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to assess the nature and etiology of his bilateral pes planus.  The claims file should be made available to the examiner, and the examiner must indicate that the claims file was reviewed.  All pertinent symptomatology and findings should be reported in detail.  The examiner should describe whether the Veteran's pes planus is a congenital defect or acquired.

After examination of the Veteran and review of the entire record, the examiner is requested to address whether the Veteran's bilateral pes planus was aggravated by his active service.  If yes, the examiner must state whether that increase was beyond the natural progress of the disorder.  A rationale for any opinion expressed must be provided.  

2.  Readjudicate the claim on appeal.  If, upon completion of the above action, any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.

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).



_________________________________________________
H. N. SCHWARTZ
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).