Citation Nr: 1534509 Decision Date: 08/12/15 Archive Date: 08/20/15 DOCKET NO. 13-12 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Entitlement to service connection for a left ankle disorder, to include as secondary to bilateral pes planus. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards Andersen, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active service from January 1956 to July 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A notice of disagreement was received in January 2012, a statement of the case was issued in April 2013, and a VA Form 9 was received in May 2013. The Veteran requested a hearing before the Board. The requested hearing was conducted in August 2014 by the undersigned Acting Veterans Law Judge. A transcript is associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. In addition to the VBMS claims file, there is a Virtual VA paperless file associated with the Veteran's case. In October 2014, the Board remanded these claims for additional development. Unfortunately, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to service connection for bilateral pes planus and a left ankle disorder. Inasmuch as the Board sincerely regrets another remand of this matter, the development directed by the Board in its last remand was not accomplished. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran entered into service with normal feet. See January 1956 entrance examination. In May 1957, the Veteran sought treatment for pain in his feet. He gave a history of severe flat feet and was found unfit for duty by the Medical Board, due to his severe flat feet. His discharge examination, dated July 1957, noted severe bilateral flat feet with short tendo Achilles, congenital. See July 1957 discharge examination. In the October 2014 remand, the AOJ was instructed to afford the Veteran a VA examination for his bilateral pes planus and left ankle disorder. The examiner was to indicate whether each diagnosed bilateral foot disorder was a congenital defect, congenital disease, or acquired in nature. Based on that determination, the examiner was then to answer multiple questions, including whether the disorder clearly and unmistakably existed prior to service and if so, whether it clearly and unmistakably was not aggravated during or as a result of service. The examiner was also asked to offer comments and an opinion regarding the private physician's statement from September 2014, which opined that the Veteran's bilateral pes planus was due to service. The Veteran was afforded a VA examination in January 2015. The examiner failed to answer any of the questions posed in the October 2014 remand. There was no discussion as to whether the Veteran's bilateral pes planus was a congenital defect, congenital disease, or an acquired disorder. The examiner failed to offer an opinion as to whether the Veteran's bilateral foot disorder clearly and unmistakably existed prior to service and if so, whether it was aggravated therein. The Board also notes that the examiner discussed a minor left ankle sprain during service, but failed to note the in-service records diagnosing the Veteran with severe, bilateral flatfoot that had become more symptomatic since his admission to service. Furthermore, the examiner stated that the Veteran had no current complaints or diagnosis of the right foot; however, a January 2014 VA outpatient record indicates that an orthopedic examination revealed the Veteran had flat feet. On remand, the Board finds an addendum opinion is necessary that provides comments and opinions regarding the requested information by the Board. A medical opinion should also be obtained regarding whether the Veteran's left ankle disorder is proximately due to or aggravated by his bilateral pes planus. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain and associate with the claims file all updated treatment records. 2. Obtain an addendum opinion for the Veteran's bilateral pes planus. If deemed necessary by the examiner, afford the Veteran a VA examination for bilateral pes planus. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. a) Please opine as to whether the Veteran's bilateral pes planus is a congenital disease, a congenital defect, or an acquired disorder. The examiner is advised that for purposes of VA compensation, a congenital defect is defined as a condition that is more or less stationary in nature, whereas a congenital disease is defined as a condition capable of improving or deteriorating. b) If the Veteran's bilateral pes planus is a congenital defect, was this defect subject to a superimposed disease or injury during service? If the answer is "Yes," please describe the resultant disability. The examiner must note the in-service Medical Board finding that the Veteran's feet had become more symptomatic since his admission to service. c) If it is determined to be a congenital disease, please offer an opinion as to whether the congenital disease was aggravated (beyond a natural progression) by his military service. The examiner must note the in-service Medical Board finding that the Veteran's feet had become more symptomatic since his admission to service. d) If it is determined to be an acquired disorder, please offer an opinion as to whether the disorder clearly and unmistakably existed prior to service, and if so, whether the disorder was clearly and unmistakably not aggravated (beyond a natural progression) during or as a result of service. The examiner must note the in-service Medical Board finding that the Veteran's feet had become more symptomatic since his admission to service. e) For each acquired disorder found not to have clearly and unmistakably existed prior to service, the examiner is to opine whether it is at least as likely as not (at least a 50 percent probability) that the bilateral pes planus is causally or etiologically due to service. The examiner must offer comments and an opinion on the September 2014 private medical opinion indicating the Veterans' bilateral pes planus was incurred during service and aggravated therein. In providing these opinions, the examiner must acknowledge and discuss any lay evidence of a chronicity of symptoms, as well as the in-service documented symptoms, treatment and diagnosis of severe, bilateral flat feet. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. 3. Obtain an addendum opinion for the Veteran's claimed left ankle disorder. If deemed necessary by the examiner, afford the Veteran a VA examination for a left ankle disorder. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is at least as likely as not (i.e., probability of 50 percent): a) that the Veteran's left ankle disorder is causally or etiologically due to service; and, b) that the Veteran's left ankle disorder is proximately due to OR aggravated (beyond a natural progression) by his bilateral pes planus. The examiner should offer comments and opinion on the January 2015 VA opinion indicating that the Veteran's left ankle disorder was a result of left foot deformity and failed surgical intervention. In doing so, the examiner must acknowledge symptoms reported during and after service and discuss any medical AND lay evidence of a continuity of symptomatology. 4. After all of the above actions have been completed, readjudicate all the claims. If the claims remain denied, issue to the Veteran and his representative a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 5. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ T. MAINELLI Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).