Citation Nr: 1752345 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-22 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1957 to May 1960. This matter is on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The issue on appeal was previously denied by the Board in May 2016. The Veteran appealed this decision to the Court of Appeals for Veterans Claims which, in a May 2017 Order, vacated the Board's decision and remanded the issue for additional development and readjudication. This appeal is comprised entirely of documents contained in the Legacy Content Manager paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, further development is necessary before this appeal can be adjudicated. Specifically, in this case, it is established that asymptomatic bilateral pes planus was noted on the Veteran's May 1957 entrance examination. Therefore, in order for service connection to be warranted, the evidence must establish that his pes planus worsened in severity during active service. In this regard, the Veteran complained of "foot trouble" at his separation examination in April 1960, although an examination of the feet on that occasion was normal. The service treatment record also includes an instance where he complained of foot pain, although it was not clear whether his bilateral pes planus actually worsened in severity, as is required. In order to resolve this question, the Veteran has undergone a number of VA examinations. Specifically, in September 2014, the VA examiner diagnosed bilateral pes planus, but opined that the disorder was less likely than not incurred in or caused by service. However, this examiner did not address the Veteran's statements of foot pain in his service treatment records. After the Board remanded this appeal in June 2015 for a new examination, the VA examiner provided an addendum opinion in August 2015, but still did not address the Veteran's lay statements and service treatment records. The appeal was again remanded by the Board in December 2015, where the Veteran was to be provided a new VA examination with a "physician with sufficient expertise" to determine whether pes planus permanently increased in severity during the Veteran's service and if so, whether the in-service increase was clearly and unmistakably due to natural progress. The December 2015 Remand also directed the examiner to "specifically comment on the report of a May 1957 entrance examination noting asymptomatic pes planus; June 1957, November 1958, and April 1960 service treatment records reporting foot pain, and the Veteran's lay statements regarding his foot pain symptoms in service and since." The Veteran was afforded another VA examination in February 2016. The examiner, a nurse practitioner, opined that the Veteran's pes planus did not permanently increase in severity during the Veteran's service and that the increase was clearly and unmistakably due to the natural progress of the condition. This February 2016 VA examination is inadequate for two reasons. First, contrary to the Board's instructions, the examiner was not a "physician with sufficient expertise" in foot disorders. Moreover, the examiner did not comment on the Veteran's statements of foot pain during service, despite being directed to do so in the December 2015 Remand instructions. Therefore, there has not been substantial compliance with the Board's prior instructions, and this appeal must be returned to the RO to provide an adequate examination that complies with the instructions provided in its 2015 Remand. Specifically, the Veteran should be provided with a new examination by a physician. The physician examiner must address the Veteran's reports of foot pain during and after service. Specifically, she or he must state whether the Veteran's foot pain during service is the same disorder from which the Veteran currently suffers. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the case is REMANDED for the following action: (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 all treatment records from the VA Medical Center in Buffalo, New York since October 2017, as well as any VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit records. 2. Schedule the Veteran for a VA examination by a physician who has sufficient expertise in foot disorders, to determine the nature, extent, onset and etiology of his pes planus. The claims file must be provided to the examiner for review. All indicated studies deemed necessary by the examiner should be performed, and all findings of these tests should be reported in detail. Since the Veteran's pes planus was observed upon entry into service, the examiner is asked to specifically state whether the Veteran's pes planus worsened in severity during his active duty service. If his pes planus has worsened in severity, the examiner is asked to state whether there is clear and unmistakable error that the worsening of the disorder is due to the natural progression of the disorder. In order to prevent prejudice to the Veteran, this examiner is asked specifically consider the Veteran's lay statements regarding this disorder, and is specifically asked to comment on the report of a May 1957 entrance examination noting asymptomatic pes planus; June 1957, November 1958, and April 1960 service treatment records reporting foot pain, and the Veteran's lay statements regarding his foot pain symptoms in service and since. She or he must discuss whether the Veteran's foot pain during service is indicative of his current pes planus If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should 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 that particular question(s). 3. If the benefits sought, to include entitlement to service connection for bilateral pes planus, remain denied, furnish the appellant a supplemental statement of the case and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 is 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). _________________________________________________ B.T. KNOPE 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) (2017).