Citation Nr: 1340677 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 09-28 637 ) 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 planus, to include hyperpronated feet and calcaneal spurs. 2. Entitlement to service connection for allergic conjunctivitis. 3. Entitlement to service connection for vitreal floaters. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served in the U.S. Air Force from March 1987 to March 2007. He retired from service after twenty years of honorable and faithful service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in St. Petersburg, Florida as part of the Benefits Delivery at Discharge (BDD) program. In May 2013, this matter was last before the Board, at which time it was remanded for further development. 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 In May 2013, the Board remanded the claims on appeal to obtain further etiological opinions. In June 2013, such opinions were obtained. With respect to the claim for service connection for bilateral pes planus, to include hyperpronated feet and calcaneal spurs, the Board sought medical opinions on whether pes planus noted at entrance qualified as a congenital or developmental defect, versus a disease, and whether the condition was aggravated in service. The Board also sought an opinion on whether the condition had been chronically aggravated by a service-connected right ankle disability. The examiner was asked, in each case, to provide a complete rationale for any opinion given. The June 2013 examiner assessed "preexisting bilateral pes planus." She concluded that the condition was not caused by or related to service, noting that it was a "condition" present at entrance, as shown by the Veteran's October 1986 entrance Report of Medical Examination. She found it less likely than not that there was a superimposed injury or disease in service, as well as that it was less likely than not that congenital/developmental pes planus was aggravated in service. She reasoned that "[t]he preponderance of available medical record documentation" did not support finding otherwise in each case. She further concluded that congenital/developmental pes planus was "most likely increased due to the natural progression of the disease," citing available medical literature. She also found that bilateral pes planus, to include hyperpronated feet, was not due to, or caused by, the service-connected right ankle disability, reasoning that "there is no clinical correlation/nexus between these two entirely separate medical conditions." The June 2013 VA examination report is inadequate to decide the claim. The examiner seems to indicate that pes planus is a congenital disease, as opposed to a defect, yet she addresses both the question of whether there is superimposed injury or disease thereon, as well as the question of whether the condition was aggravated in service. Also, the examiner's rationale that merely cites a "preponderance of the available evidence" is insufficient. To be adequate, a medical opinion must do more than state a conclusion; rather, the medical examiner must support his or her conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 123 (citing Tucker v. West, 11 Vet. App. 369, 374 (1998)). Accordingly, the Board finds that another medical opinion should be obtained. 38 C.F.R. § 4.2. Likewise, in June 2013, a medical opinion was obtained on the Veteran's claimed allergic conjunctivitis. The examiner rendered a negative etiological opinion, concluding that the condition was not caused or aggravated by military service, but rather "by or a result of the environment." The examiner did not address whether the claimed condition was incurred in service, i.e. whether it first manifested therein, regardless of the etiological agent. The opinion does not address the Boards remand directives. Stegall, supra. Accordingly, it must likewise be returned. 38 C.F.R. § 4.2. Also, in May 2013, the Board remanded the claims for service connection of bilateral pes planus, to include hyperpronated feet and calcaneal spurs, and vitreal floaters, not only for VA examinations, but also to have the AOJ consider these claims under the criteria for establishing service connection on a secondary basis under 38 C.F.R. § 3.310 and for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, respectively. In the July 2013 Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) did not address or include these provisions. Accordingly, the claims must be remanded. Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the June 2013 VA examination of the Veteran for an addendum. If the June 2013 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. After a review of the claims file, the author of the June 2013 VA opinion or other health care provider MUST respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: a) Upon prior VA examination it was determined that the Veteran had a flatfoot deformity which is a developmental disorder. Please explain whether the Veteran's pes planus is a developmental defect or disease. [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875 (D.C. Circuit 1954)]. b) If it is a developmental defect, please explain whether it is more likely than not (a greater than 50 percent probability), at least as likely as not (a probability of 50 percent or greater), or less likely as not (less than a 50 percent probability)or that there was a superimposed injury or disease in service that resulted in additional disability of the feet. Please provide a complete explanation for the opinion. c) If it is not a developmental defect, i.e. if the examiner identifies the condition as a disease, was the pes planus, which was shown on the service induction examination, at least as likely as not aggravated (i.e., permanently increased in severity) during that period of service. Please provide a complete explanation for the opinion. d) If the examiner identifies pes planus as a disease and concludes that it is at least as likely as not that aggravation occurred in service, was any increase in the severity of pes planus clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. Please provide a complete explanation for the opinion. e) If the examiner renders unfavorable opinions with respect to remand paragraphs "b)," "c)" and "d)," is it more likely than not (a greater than 50 percent probability), at least as likely as not (a probability of 50 percent or greater), or less likely as not (less than a 50 percent probability) that bilateral pes planus, to include hyperpronated feet and calcaneal spurs, is due to or caused by the service-connected right ankle disability. Please provide a complete explanation for the opinion. f) If the examiner renders unfavorable opinions with respect to remand paragraphs "b)," "c)," "d)" and "e)" is it more likely than not (a greater than 50 percent probability), at least as likely as not (a probability of 50 percent or greater), or less likely as not (less than a 50 percent probability)that bilateral pes planus, to include hyperpronated feet and calcaneal spurs, is aggravated beyond the natural progress by the service-connected right ankle disability. If so, examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. Please provide a complete explanation for the opinion. Any and all opinions must be accompanied by a discussion of the underlying reasons. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The evidentiary standard of clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012) (citations omitted). 2. Return the claims file to the examiner who conducted the June 2013 VA eye examination of the Veteran for an addendum. If the June 2013 VA examiner is not available, the claims file must be available to another appropriate health care provider for the requested opinion. After a review of the claims file, the author of the June 2013 VA opinion or other health care provider MUST respond to the following questions and provide a full statement of the basis for the conclusion(s) reached: Based upon a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that allergic conjunctivitis, to include seasonal allergic conjunctivitis, is attributable to service, including whether allergic conjunctivitis had its onset therein, i.e. began in service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reason(s) for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claims, to include consideration of the claim for service connection of vitreal floaters under the criteria for establishing service connection for an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 and the claim for service connection of bilateral pes planus, to include hyperpronated feet and calcaneal spurs under 38 C.F.R. § 3.310. The pertinent legal provisions (i.e., 38 C.F.R. §§ 3.310, 3.317) should be included in the SSOC if either claim remains denied. In any event, if any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto before this case is returned 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. 2013). _________________________________________________ S. S. TOTH 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).