Citation Nr: 1341349 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-22 378 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran (appellant) served on active duty from June 1968 to May 1970. He also had unverified service in the Kentucky Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for bilateral pes planus. In January 2012, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record and associated with the claims folder. 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 appellant contends, in essence, that his preexisting bilateral foot disorder was aggravated during his active service. He maintains that he had asymptomatic bilateral pes planus prior to service, and upon marching, walking, and training in combat boots in service, his feet worsened and has been problematic since that time. As a result of his service, he has had to undergo several foot surgeries since service and he continues to complain of the foot disorder to this date. A review of the medical record reveals that the appellant was treated on at least one occasion during active service for his bilateral foot complaints. The appellant testified at his videoconference hearing in January 2012, that he complained on a regular basis of foot pain and problems during active service, until he was informed that if he continued his complaints, he would have to be recycled. After training, he stated that he worked at a job in service where he was secured from others and he often took his shoes off because of his foot pain. While reviewing the medical records, at least 2 sick call slips were associated with the claims folder which showed, in pertinent part, that he received treatment for his feet and was placed on light duty during service with the Kentucky Army National Guard. No records showing service with the National Guard are associated with the claims folder. Records indicating whether the appellant had active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) are necessary in this regard. Additionally, the appellant underwent a VA examination in April 2010. The examiner stated that the examination was not done specifically for pes planus. The examiner opined that it was less likely as not that his present foot disorder is related to a foot disorder reported while in service. The examiner's rationale for this finding was that there was no diagnosis of a chronic disabling foot condition listed in the diagnosis at separation from service or in the medical records in the claimed folder. The examiner also stated that he was not able to identify any objective medical evidence to produce a nexus between the pes planus that was identified prior to service and the current foot disorder. He also opined that there was no objective medical evidence suggesting aggravation of pes planus beyond the natural history of the condition by military service. It is important to note that the examiner continued to discuss the appellant's present foot condition, but did not provide a diagnosis of the same. Additionally, the examiner stated that there was no evidence of a chronic disabling foot condition in the medical evidence of record. However, he did not address that on at least one occasion in active service, the appellant was treated for his bilateral foot condition and provided with plantar and metatarsal arches. At that time, the foot complaint was of extreme discomfort. Moreover, the examiner did not comment on the sick slips for treatment of his foot complaints, also associated with the claims folder nor the appellant's lay statements of constant complaints and the threat to be recycled if he continued to complain. As a result of the limited rationale in this case, the examination was inadequate for rating purposes. See 38 C.F.R. § 4.2 (2013). Therefore, additional examination is needed in this regard. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. Contact the appropriate Federal sources and the Kentucky Army National Guard and ask each of the agencies/units/organizations to confirm the appellant's dates of service to include specific dates (not retirement points) for any periods of ACDUTRA and INACDUTRA. All personnel and service medical records connected to his Kentucky Army National Guard service should also be obtained and associated with the claims folder. If, after making reasonable efforts to obtain these records the RO/AMC is unable to secure them, a formal finding of unavailability should be associated with the claims file. The RO/AMC should notify the appellant and (a) identify the specific records that are unobtainable; (b) briefly explain the efforts made to obtain those records; and (c) describe any further action to be taken with respect to the claim(s). Give the appellant a reasonable opportunity to respond. 3. Thereafter, the appellant should be afforded an appropriate VA orthopedic examination. The claims folder must be made available and reviewed by the examiner. All indicated studies should be performed. The examiner must provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that the appellant's preexisting bilateral pes planus disorder was aggravated by service or any ACDUTRA service. If the examiner renders an opinion in the negative, he should provide an opinion indicating the nature and etiology of any present bilateral foot condition (give the appropriate diagnosis) and indicate whether it had its onset in service or if it is due to an event in service. In offering these assessments, the examiner must discuss any statements made by the appellant regarding the onset and/or chronicity of the pertinent symptoms, internet reports he submitted regarding pes planus, sick slips of treatment rendered during National Guard service (Camp Pickett, VA), the lay statements provided by his friends that knew him prior to and after service, and consideration of his post service treatment, including his surgeries of his feet. If the answer to the above is rendered in the negative, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the appellant's bilateral foot disorder (to include bilateral pes planus or any other diagnosed foot condition) was incurred in or aggravated by his ACDUTRA. If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the bilateral foot disorder (i.e., a baseline) before the onset of the aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. All findings and conclusions requested should be set forth in a legible report. Supporting rationale must be provided with each requested opinion. If the examiner cannot provide an opinion without resorting to mere speculation, such should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. The RO/AMC should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, specific studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2; See also Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking the development above, readjudicate the appellant's claim. If the benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the appellant, and an appropriate period of time in which to respond. Thereafter, return the appeal to the Board for appellate review. 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). _________________________________________________ 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) (2013).