Citation Nr: 1320075 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 11-05 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral flat feet. 2. Entitlement to service connection for peripheral neuropathy, right lower extremity. 3. Entitlement to service connection for peripheral neuropathy, left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to March 1968, with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office and Insurance Center in Philadelphia, Pennsylvania (RO). The Veteran was afforded a videoconference hearing before the Board in February 2012. The Veterans Law Judge who conducted the February 2012 hearing is no longer employed with the Board. Therefore, in February 2013, the Board sent the Veteran a letter offering him the opportunity to testify at another hearing before the Board before a different Veterans Law Judge, in accordance with 38 C.F.R. § 20.717 (2012). As the Veteran did not respond to the February 2012 letter, the Board will assume that he does not wish to appear at another hearing, and will proceed to adjudicate the issues on appeal. In that regard, the transcript from the February 2012 hearing has been associated with the Veteran's claims file and will be considered in the adjudication of this appeal. This appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is needed in connection with the claims of service connection for bilateral flat feet and neuropathy of the right and left lower extremities. The Veteran's November 1965 service entrance examination shows a diagnosis of pes planus, second degree. Because flat feet disability was noted at the time of entrance examination, the presumption of soundness does not attach in this case. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); 38 C.F.R. § 3.304 (2012). Therefore, the question to be answered in this case is whether the Veteran's preexisting flat feet were aggravated during service. A preexisting injury or disease will be considered to have been aggravated during 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; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). At the February 2012 videoconference hearing before the Board, the Veteran testified that his in-service activities aggravated his flat feet, particularly with regard to all the marching and running that was required. He also felt that the type of boots he wore aggravated his feet. The Veteran underwent a VA examination of the feet in July 2009 but the examiner rendered a diagnosis and opinion with regard to the right foot only. Moreover, while the examiner noted that the right flat foot was a preexisting condition, the examiner also concluded that "it is at least as likely as likely as not caused by or a result of his military service." Notwithstanding the omission of a diagnosis and opinion with regard to the left foot, the Board finds that the VA examiner in July 2009 did not provide a medical opinion based upon the proper legal standard. The question in this case is whether the Veteran's preexisting flat feet disability underwent a permanent increase in severity during active duty, and if so, whether any increase of this disability is due to the natural progress of the disease. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, based on the nature of the Veteran's claim and the evidence currently of record, the Board finds that further medical opinion is necessary. The Veteran also seeks service connection for neuropathy of the right and left lower extremities, to include as secondary to his flat fleet. As the Veteran's claims for neuropathy of the lower extremities are also dependent upon the disposition of the bilateral flat feet claim, the Board finds that the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The evidence shows that the Veteran is currently diagnosed as having peripheral neuropathy of both lower extremities. The July 2009 VA examiner determined that the "peripheral neuropathy is not caused by or a result of the flat foot," but did not provide a rationale for the conclusion. Moreover, a July 2009 VA podiatry note includes an impression of polyneuropathy, " ? cause flatfeet." In light of this evidence, the Board finds that further opinion should also be obtained with respect to the current nature and etiology of neuropathy of the right and left lower extremities. Moreover, the Board notes that in January, March and June 2012, additional medical evidence was received from Veteran at the Board without a waiver of initial consideration of such evidence by the RO. The evidence shows ongoing treatment and evaluation for the Veteran's flat feet as well as medical evidence indicating aggravation of the disorder. Under 38 C.F.R. § 20.1304(c), any pertinent evidence submitted without a waiver must be referred to the RO. 38 C.F.R. § 20.1304(c) specifically states that "[e]vidence is not pertinent it if does not relate to or have a bearing on the appellate issue or issues." In this case, the Board finds that this additional evidence is not cumulative or redundant of the previous evidence of record and is pertinent to the claims on appeal. Thus, it would be prejudicial for the Board to address this evidence without a waiver. Because the claims are already being remanded for the reasons discussed above, such additional evidence can be reviewed in the first instance by the RO on remand. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim, to include VA and non-VA medical records. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. An opinion from an appropriate VA examiner must be obtained regarding the Veteran's bilateral flat feet disability and neuropathy of the right and left lower extremities. If the examiner determines that an examination is necessary, the Veteran must be afforded an examination. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. After a review of the entire evidence of record, and with consideration of the Veteran's statements with respect to his military activities, the examiner must provide an opinion as to whether the pre-existing bilateral flat feet disability was aggravated beyond its natural course by his active service. The examiner must also provide an opinion as to whether neuropathy of the right and/or left lower extremity is related to the Veteran's period of active military service, or to any incident therein, or is related to or aggravated by the flat feet. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include a denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claims on appeal. If the benefits on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, 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). _________________________________________________ JOY A. MCDONALD 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).