Citation Nr: 1339729 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 12-10 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from October 9, 1973 to November 9, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO). A May 2010 letter from a private physician raises the issue of entitlement to service connection for a bilateral ankle disorder due to the claimed bilateral pes planus disorder. This issue has not been adjudicated by the RO. As such, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Additional development is necessary before the issue of entitlement to service connection for bilateral pes planus can be adjudicated. The report of an October 1973 induction physical examination demonstrates a diagnosis of bilateral pes planus. In this regard, as the Veteran's bilateral flat foot disorder was noted on examination upon entrance into service, the presumption of soundness does not attach in this case. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2013); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Therefore, the question is whether the Veteran's preexisting bilateral flat foot disorder was 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 (West 2002); 38 C.F.R. § 3.306(a) (2013). Where the preservice disability underwent an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). The record demonstrates that the Veteran has consistently asserted that his preexisting bilateral flat foot disorder was aggravated during active service due to prolonged marching and drilling. He further reported that he was discharged from service as a result of such disorder. In this regard, during the Veteran's four weeks of active service, service treatment records demonstrate that he sought treatment for painful feet on several occasions. During the course of treatment in November 1973, he reported that prior to service, he underwent bilateral foot surgery in 1972 at Detroit General Hospital. The report of a November 1973 Medical Board Statement indicates that the Veteran had a preexisting bilateral pes planus disorder diagnosed upon induction into service. The report indicates that the Veteran went to sick call several times, complaining of bilateral foot pain, due to prolonged drilling and marching. The report also indicates that the Veteran underwent a bilateral foot operation in 1972, prior to service. The operation was to reset the bones in his feet, and the Veteran was casted for six months prior to, and following the surgery. The Veteran was discharged from service due to erroneous enlistment as a result of his bilateral pes planus disorder. In a May 2010 letter, the Veteran's private physician, L. W., D.P.M., noted the Veteran's history of undergoing a triple arthrodesis at age 18, subsequent to serving in the United States Navy. L.W. noted the Veteran's report that he was discharged from service due to bilateral foot pain. Upon examination, the diagnoses were previous triple arthrodesis, bilaterally, with partial fusion of the talonavicular, bilaterally, degenerative joint changes of ankle subsequent to previous arthroplasty of the 5th, bilaterally, and pain on gait during ambulation. L. W. concluded that "this" problem started while in the military and caused his discharge. The Veteran underwent a VA examination of the feet in March 2011. The Veteran reported that he experienced bilateral foot pain during service; specifically, he indicated that he had trouble keeping up with drills and was medically discharged due to his bilateral flat foot disorder. The diagnosis was bilateral pes planus. Upon review of the claims file, the examiner noted that the service treatment records show subjective and objective documentation of bilateral pes planus. The examiner further noted that such records show that the Veteran reported of a life long history of bilateral pes planus prior to service, as well as bilateral foot surgery in 1972 at Detroit General Hospital, prior to enlistment into service. The examiner noted that "it is less likely as not" that the Veteran's feet were aggravated by his six weeks of service. The examiner concluded that the Veteran had a preexisting bilateral pes planus disorder prior to service and, therefore, his current bilateral pes planus disorder was "less likely as not related to service." The Board finds the March 2011 VA opinion inadequate for rating purposes, as the opinion provided by the VA examiner was not based upon the proper legal standard. The question is whether the Veteran's preexisting bilateral flat feet underwent a permanent increase in severity during active service, and if so, whether any increase of this disability is due to the natural progress of the disease. Further, although the examiner reported reviewed the claims file, there is no indication that he considered the aforementioned May 2010 private treatment record that indicates. 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, 311 (2007). Subsequent to the March 2011 VA examiner's opinion, in October 2011, the Veteran submitted a letter from his private physician H. V., D.P.M., dated in January 1977. H. V. reported that the Veteran was under the care of his office since mid-1974 through 1975 for painful feet. H. V. reported that the Veteran had a history of very painful and deformed feet for several years. He stated that radiographic evaluation performed demonstrated severe bilateral peroneal spastic flatfoot deformity. He also noted a diagnosis of bilateral sub-taloid tarsal coalition with degenerative arthrosis of the major tarsal joints. H. V. reported that the Veteran underwent triple arthrodesis of the left foot in late 1974, and of the right foot in mid-1975. H. V. stated that each foot, subsequent to its respective operation, was casted for three months. H. V. concluded that the Veteran's feet were currently pain-free and without complication. 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. Specifically, an appropriate VA examiner must review the evidence of record, to include the January 1977 letter from H. V., D.P.M., which demonstrated that the Veteran underwent a bilateral foot operation shortly after discharge from service, and provide an opinion as to whether the Veteran's preexisting bilateral flat foot disorder underwent a permanent increase in severity during active service, and if so, whether any increase of this disability is due to the natural progress of the disease. In his February 2010 formal claim, the Veteran indicated that he received treatment for his bilateral flat foot disorder from E. B., M.D., located in Southfield, Michigan, from 1973 to the present. Such private treatment records have not been obtained and associated with the record. Additionally, as above, service treatment records note the Veteran's report of preservice bilateral foot surgery in 1972 at Detroit General Hospital. Likewise, such records have not been obtained associated with the record. Therefore, the RO must attempt to obtain the Veteran's private treatment records from Dr. B. dated from January 1973 to the present, as well as records from Detroit General Hospital dated in 1972 and associate them with the record. 38 C.F.R. § 3.159(c)(1) (2013). Accordingly, the case is remanded for the following actions: 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. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of the Veteran's response, the RO must attempt to obtain the Veteran's private treatment records from Dr. B. dated from January 1973 to the present, as well as records from Detroit General Hospital dated in 1972. All attempts to secure this evidence must be documented in the claims file by the RO. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and his representative and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. The claims file and all electronic records must be made available to the March 2011 VA examiner, and the examiner must specify in the examination report that these records have been reviewed. If the examiner who conducted the March 2011 VA examination is unavailable, an appropriate VA examiner must be directed to provide the supplemental finding to the March 2011 VA examination. If the VA examiner determines another examination is necessary to provide the finding, an examination must be scheduled. Following review of the preservice, service, and post-service medical records, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the preexisting bilateral flat foot disorder underwent a permanent increase in severity during the Veteran's military service and if so, was such increase due to the natural progress of the disorder. 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. 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 must be typed. 3. The medical 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. 4. After completing the above actions, the RO must readjudicate the Veteran's claim, taking into consideration any and all evidence that has been added to the record since its last adjudicative action. If the benefits on appeal remain denied, the Veteran and his representative must be provided a supplemental statement of the case and given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. 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) (2013).