Citation Nr: 1606279 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 09-46 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right foot disability. REPRESENTATION The Veteran is represented by: Veterans Legacy Advocacy Group ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. During the pendency of this appeal, jurisdiction over the Veteran's claim was transferred to the RO in Roanoke, Virginia. This matter was denied by the Board in June 2013. At that time, the issue was captioned and evaluated as one to reopen the issue of entitlement to service connection for a right foot disability. The U.S. Court of Appeals for Veterans Claims (Court) issued an October 2014 memorandum decision wherein it vacated the Board's June 2013 denial. The claim was then remanded to the Board for consideration consistent with the Court's decision. REMAND In March 2015, after reopening the Veteran's claim, the Board remanded the Veteran's claim for additional development. In part, the Board directed the RO to provide the Veteran with a VA examination in order to obtain an opinion as to whether "it is at least as likely as not (i.e., 50 percent probability or greater)" the Veteran's pre-existing right foot pes planus worsened during his active duty. If so, the examiner was then asked to provide an opinion as to "whether there is clear and unmistakable evidence (i.e., highest degree of medical certainty) that any increase in severity was due to the natural progress of the disease." In September 2015, the Veteran underwent a VA examination to assess his right foot disabilities. Ultimately, the examiner provided a diagnosis of right foot pes planus. The examiner then provided negative etiological and aggravation opinions, which was supported by the following rationale: The service medical records documents [sic] moderate asymptomatic bilateral pes planus on entrance. I find no records of any in-service foot complaints other than the laceration to the right big toe on [August 24, 1993]. The separation exam[ination] records normal feet! This can not be true. Pes planus does not correct itself. There is no evidence of record to show that there was any progression during military service. Accordingly I am unable to state that his pes planus was clearly and unmistakably aggravated by military service. Additionally, later in the opinion, the examiner provided the following opinion: I must say that the part that puzzles me about this [V]eteran's history is the persistence of complaints of right foot pain though he entered the military with bilateral moderate asymptomatic pes planus. The only unilateral event that I find in his record is the August 1993 injury to the right big toe. I suspect that this injury, as [the V]eteran claims, precipitated the predominance of right sided symptoms. However I do not have evidence to support this suspicion. The September 2015 VA examiner mistakenly conflated the questions presented by the Veteran's claim regarding aggravation of his pre-existing right foot pes planus. Specifically, the examiner opined that she was unable to state that the Veteran's pes planus was "clearly and unmistakably aggravated" during his active duty. This opinion runs afoul of the applicable evidentiary standard and, thus, is inadequate for purposes of adjudicating the Veteran's claim. Additionally, the examiner observes that the "only" unilateral injury to the Veteran's right foot was the August 1993 in-service injury and, yet, the examiner finds that there was no evidence to confirm her suspicion that this was the etiology of the a right foot disability. The examiner does not provide an explanation as to how or why the "only" unilateral injury to the Veteran's right foot is insufficient to support a positive etiological relationship. For the reasons discussed above, the Board finds that a remand is required in order for the VA examiner to provide a supplemental opinion. Accordingly, the case is remanded for the following action: 1. The RO must attempt to obtain a supplemental opinion from the September 2015 VA examiner. The Veteran's electronic claims file must be made available to and reviewed by the examiner. Thereafter, the examiner is requested to provide opinions to the following questions: (a) Did the Veteran's pre-existing right foot pes planus worsen during his active duty? (b) If there is evidence of worsening during the Veteran's active duty, the examiner must then provide an opinion as to whether that worsening is aggravation beyond the natural course of the disability. In addressing these questions, the examiner must consider and discuss the previous finding of "persistence" of the Veteran's complaints and the evidence of "only" one unilateral injury to the right foot. A thorough rationale for any opinion expressed must be included in the examination report. A thorough rationale is not simply a restatement of the evidence, but includes the application of medical analysis and a discussion of the significant of the relevant evidence. A thorough rationale may include, but is not limited to, specific references to evidence, citing to relevant medical literature and/or studies, discussions as to the medical principles involved, and extrapolating from the clinical findings of record. 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. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If the September 2015 VA examiner is unavailable, the RO must provide the Veteran with another examination wherein the above questions are addressed. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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 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).