Citation Nr: 1329314 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 10-07 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from January 1962 to June 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In July 2011, the Board reopened the Veteran's claim for service connection for bilateral pes planus, and remanded the claim on the merits, along with other claims no longer on appeal. In March 2013, the Board recharacterized the issue on appeal as one for service connection for a bilateral foot disorder and remanded the claim for further development because of inadequate medical opinions. 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 on his part. REMAND Unfortunately, a remand is required for the claim on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). The Board has determined that further development of the Veteran's claim is warranted. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, a remand for compliance with the directives of the Board's March 2013 remand is warranted. The March 2013 Board remand directed the RO/AMC to ensure that the medical report generated by a VA examination include adequate responses to the specific opinions requested. The April 2013 VA examiner diagnosed pes cavus, hammertoes, arthritis, toe amputations, and peripheral sensory-motor polyneuropathy and opined that all these bilateral foot disorders were due to the polyneuropathy whose cause was not clear. However, evidence in the record indicates that at least one of the Veteran's foot conditions preexisted military service as mild pes cavus was noted on his November 1961 enlistment examination. Thus, the April 2013 VA examiner failed to explain whether the mild pes cavus noted on the induction physical was in error, or whether any preexisting pes cavus, apparently also the result of polyneuropathy, did not increase in severity during service. The adjudication of a service connection claim for a preexisting disorder involves different concepts and standards than deciding a direct service connection claim. The Board's April 2013 remand instructions attempted to present the results of a medical opinion regarding the Veteran's bilateral foot disorders in a format that would use the "clear and unmistakable" standard for preexisting foot disorders that might have been aggravated during service and the "at least as likely as not" standard for those foot disorders that may have been incurred as a result of service. The April 2013 medical opinion, unfortunately, did not track the question and answer format developed in the March 2013 Board remand to ease adjudication of this complicated claim. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. A preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. When the presumption of soundness has attached, VA has the burden of proving by clear and unmistakable evidence that both (1) the Veteran's disease or injury pre-existed service and (2) that such disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard used in most cases of direct service connection. It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C.A. § 1153. In its March 2013 remand, the Board directed the VA examiner to employ the "clear and unmistakable" standard in answering a number of questions for those foot disorders deemed preexisting to service. As noted above, service treatment records indicated that mild pes cavus was noted on the Veteran's November 1961 enlistment examination. The April 2013 VA examiner diagnosed pes cavus, hammertoes, arthritis, and peripheral sensory-motor polyneuropathy and opined that all these bilateral foot disorders were due to the polyneuropathy whose cause was not clear. However, the April 2013 VA examiner failed to explain whether the mild pes cavus noted on the induction physical was in error; or whether any preexisting pes cavus, also the result of polyneuropathy, clearly and unmistakably did not increase in severity during service. The April 2013 VA examiner also failed to reconcile his or her findings with those in the May 2009, September 2011, and October 2012 VA medical examinations, as the Board had requested. Therefore, on remand the RO/AMC should ensure that the April 2013 VA examiner renders an opinion consistent with the instructions in this Remand or, in the alternative, that the Veteran is scheduled for another VA examination and medical opinion. Accordingly, the case is REMANDED for the following action: 1. Copies of updated treatment records, VA and non-VA, should be obtained and added to the claims folder. 2. Following completion of the above, the claims file shall be forwarded to the April 2013 VA examiner for clarification as the medical opinion in that examination report did not answer specific questions asked in the Board's March 2013 remand. Therefore, after a review of the claims file and any notes from the April 2013 examination, the April 2013 VA examiner is requested to answer the following questions: (a) Whether you believe the diagnosis of pes cavus noted on entry into service was accurate? Please explain your answer to this question. (b) If you believe that the diagnosis of pes cavus noted on entry into service was accurate, and therefore that the Veteran's pes cavus preexisted entry into service, please opine whether there is clear and unmistakable evidence that the preexisting pes cavus did not increase in severity during service. Regulations require us to presume that something which has been symptomatic in service did increase in severity during service. To rebut this presumption, VA must point to clear and unmistakable evidence that there was no increase in severity during service. What is the clear and unmistakable evidence that pes cavus did not increase in severity during service? (c) If you do find that the Veteran's preexisting pes cavus underwent an increase in disability during service, please opine whether this increase in disability was beyond the natural progress of the disease. (d) If you find that the diagnosis of pes cavus noted on entry into service is not accurate and that the Veteran's pes cavus did not clearly and unmistakably exist prior to service, then please opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current pes cavus had its onset during service, or is related to any event in service. (e) In providing the above opinions, and in explaining any opinions found in your April 2013 VA examination, please reconcile any findings with those in the May 2009, September 2011, and October 2012 VA medical examination reports, including the September 2011 VA examiner's opinion that the arthritis of the Veteran's right foot is at least as likely as not due to the aggravation of his preexisting pes cavus. (Those examination reports are found in the claims file and have been summarized in the July 2011 and March 2013 Board remands.) 3. If the April 2013 examiner is not available to clarify the April 2013 VA medical opinion, then schedule the Veteran for an appropriate VA examination by a qualified examiner who has not previously examined the Veteran. The examiner must review the claims file and must note that review in the report. The examiner should consider all of the medical and lay evidence of record and should provide the following information: (a) The examiner should clearly identify each diagnosed foot condition, whether left, right or bilateral; then (b) The examiner should opine whether any diagnosed foot condition (left, right, or bilateral) clearly and unmistakably existed prior to the Veteran's entry into service. This should include a discussion of the notation of bilateral pes cavus on the Veteran's entrance examination in November 1961. (c) If any diagnosed foot or bilateral foot condition clearly and unmistakably existed prior to the Veteran's entry into service, the examiner should then opine whether there is clear and unmistakable evidence that the preexisting foot or bilateral foot condition did not increase in severity during service. In providing this opinion, the examiner should reconcile his or her conclusion with that of the September 2011 VA examiner's opinion that the arthritis of the Veteran's right foot is at least as likely as not due to the aggravation of his preexisting pes cavus. (d) If any preexisting foot or bilateral foot condition underwent an increase in disability during service, was the increase in disability beyond the natural progress of the disease. (e) If the examiner determines that any diagnosed foot or bilateral foot condition did not clearly and unmistakably exist prior to service, then the examiner should opine whether it is at least as likely as not (i.e. a 50 percent or greater probability) that any current foot condition had its onset during service, or is related to any event in service? In providing the above opinions, the examiner is requested to reconcile his or her findings with those in the May 2009, September 2011, October 2012, and April 2013 VA medical examination reports. 4. If either the April 2013 VA examiner providing a clarification of the April 2013 medical opinion, or a different examiner providing a new examination and medical opinion, feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given the state of medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Then, review the claims file and ensure that all of the foregoing development actions have been completed in full. If the requested medical report does not include adequate responses to the specific opinions requested, the report must be returned to the appropriate examiner for corrective action. 6. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ F. JUDGE FLOWERS 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).