Citation Nr: 1312866 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-30 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral pes cavus. 2. Entitlement to service connection for bilateral hallux valgus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from April 1979 to July 1980. This case arose before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that determined that new and material had not been submitted and then denied an application to reopen claims for service connection for bilateral hallux valgus and bilateral pes cavus. The Board remanded the case in September 2011 and again in April 2012. In December 2012, the Board reopened the claims for service connection for bilateral hallux valgus and bilateral pes cavus and remanded the claims for development, which has been substantially completed. 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 The Board apologizes for the delay but finds that another remand is warranted. In December 2012, the Board remanded this matter to obtain an addendum VA opinion clarifying the Veteran's current disabilities. In January 2013, the examiner indicated that the Veteran has bilateral pes cavus and bilateral hallux valgus. VA's duty to assist includes providing a medical examination or obtaining a medical opinion where such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(b) (2012); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Unfortunately, additional opinions are needed prior to adjudication. As noted previously, bilateral pes cavus was noted on the Veteran's entrance examination. A veteran is presumed to be in sound condition when he is accepted into service, with the exception of disorders noted at the time of entry. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). Therefore, since pes cavus preexisted service, an opinion is needed to determine whether his condition was permanently aggravated by service beyond the natural progress of the disease. Regarding hallux valgus, the condition was not noted at entry to service; therefore, the Veteran is presumed sound as to this condition. Unfortunately, the January 2013 examiner did not address the VA examination from September 1980 which included x-rays and an October 1980 orthopedic consult. These records show x-ray evidence of hallux valgus within two months of discharge from service. On remand, the examiner must provide an opinion indicating whether the hallux valgus had its onset during or is related to service or whether the condition was due to or aggravated by pes cavus. VA treatment records dated since February 2012 should be obtained and associated with the claims file. 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) (2012). Expedited handling is requested.) 1. Obtain outstanding VA treatment records dating from February 2012, if any, and associate them with the claims file. 2. Return the claims file to the January 2013 examining physician for an addendum. The physician is asked to review the physical claims file and pertinent records on the electronic, Virtual VA claims file, as well as this remand order, and provide the following: (a) Opine whether there is clear and unmistakable evidence the pre-existing bilateral pes cavus was not aggravated beyond its natural progression during or by his service. The examiner must specifically address the diagnosis at entrance ofmild, asymptomatic pes cavus, and the diagnosis at discharge of bilateral pes cavus, symptomatic. (b) Opine whether it is at least as likely as not (50 percent probability or more) that bilateral hallux valgus had onset during or due to service or due to bilateral pes cavus. The examiner must address the September 1980 VA examination and x-rays and October 1980 VA orthopedic consult which show mild hallux valgus, bilaterally. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The term "as likely as not" means at least 50 percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the medical rationale of the opinions, whether favorable or unfavorable, based on the objective clinical findings and information obtained from review of the record. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. Then readjudicate these claims in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental Statement of the Case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument on the 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. 2012). _________________________________________________ L. M. Barnard Acting 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).