Citation Nr: 1319328 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 10-29 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a bilateral foot disorder, to include bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1946 to February 1946, and from February 1951 to June 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota that, in pertinent part, declined to reopen a previously denied claim for service connection for bilateral pes planus. In September 2011, the Board reopened the claim and remanded it for further development. As such, the Board has recharacterized the issue as noted on the title page. Such characterization also takes into account the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2012, the Board remanded the claim so that a VA examination could be scheduled. Unfortunately, the appeal must be remanded again, as will be discussed below. See Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders of the Board or the Court are not complied with, the Board itself errs in failing to insure compliance). 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 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 Veteran underwent a VA examination of his feet in December 2012 as instructed by the November 2012 Remand Order. Unfortunately, some of the medical conclusions reached by the VA examiner are not adequate. The examiner diagnosed bilateral pes planus, peripheral neuropathy, radiculopathy, degenerative changes, vascular insufficiency, and foot drop. He opined that the Veteran's bilateral pes planus clearly and unmistakably existed prior to his enlistment into service in 1946 and 1951. He further opined that the Veteran's bilateral pes planus did not clearly and unmistakably undergo a permanent increase in severity during his active service. However, the rationale for this part of the opinion completely omits any discussion of the Veteran's first period of service in 1946. Instead, the examiner concluded that the Veteran's feet had an increase in symptomatology during military service in 1951, but that such increase did not qualify as an aggravation. However, the examiner did not discuss the Veteran's symptoms prior to, during, and after service in 1951. Furthermore, he did not provide references to any clear and unmistakable evidence of record which would support the conclusion that he reached, other than he "expected" there to be current anatomical changes of some sort that were not present. Current presence of anatomic changes may potentially be relevant, but the examiner should discuss those findings with respect to the presence or lack thereof during service rather than currently, as service findings are the relevant evidence for the question of service aggravation. The December 2012 examiner also opined that the other diagnosed foot conditions are not related to the Veteran's currently diagnosed bilateral pes planus. However, he did not determine whether any of these additional disorders clearly and unmistakably existed prior to either period of the Veteran's active service or, if not, whether any of these additional disorders are related to either period of the Veteran's active service, to include the noted fall from a rope ladder in 1946 during basic training. In light of these deficiencies, the Board finds that a remand for an addendum opinion is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: (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. Request an addendum opinion from the same VA examiner who conducted the December 2012 examination. The claims folder, including a copy of this remand, must be made available to the examiner. The examiner should answer the following questions: (a) Did the Veteran's pre-existing bilateral pes planus clearly and unmistakably undergo a permanent increase in severity during either period of active service - and if so, was that permanent increase in severity during service due to the natural progress of the condition? The examiner should specifically address the noted February 1946 finding of pes planus in service; the numerous statements, including from the Veteran and his parents from 1949, with regards to the Veteran's symptomatology prior to service and during and after each period of active service; the March 12, 1951handwritten letter which notes that the Veteran's pes planus is aggravated by walking; and the noted finding of moderately severe pes planus upon separation in May 1951. (b) Did any other currently diagnosed bilateral foot disorder clearly and unmistakably exist prior to the Veteran's enlistment in service in either January 1946 or February 1951? Specify and discuss the evidence used to arrive at this conclusion. (c) If so, did such pre-existing disability clearly and unmistakably undergo a permanent increase in severity during either period of the Veteran's active service - and if so, was that permanent increase in severity during service due to the natural progress of the condition? (d) If any other currently diagnosed bilateral foot disorder did not clearly and unmistakably exist prior to either period of service, then is it at least as likely as not, i.e., a 50 percent probability or greater, that such disability(ies) are due to or the result of either period of the Veteran's active service, to include falling from a rope bridge during basic training in 1946 and landing on his feet? A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) If the examiner determines that a new examination is required, one must be conducted. If the same examiner is not available, the AMC must afford the Veteran a new comprehensive examination. 2. Then, readjudicate the Veteran's claim of service connection for a bilateral foot disorder, to include bilateral pes planus. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant 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). _________________________________________________ REBECCA N. POULSON 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).