Citation Nr: 18140360 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 16-10 670 DATE: October 3, 2018 REMANDED Entitlement to service connection for bilateral pes planus (claimed as foot condition) is remanded. REASONS FOR REMAND The Veteran served in the Navy from August 1996 to May 1998, making him a veteran of the Gulf War Era. This comes to the Board of Veterans Appeal (Board) on appeal from an October 2013 Rating Decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for bilateral pes planus (claimed as foot condition) is remanded. At the August 2017 Travel Board hearing, the Veteran testified that his bilateral pes planus was aggravated as a result of his service. The Veteran asserts that he first had a problem during drills and periods of exercise with military boots. The Veteran testified that he had pes planus prior to entrance, which was noted on his service treatment records on entry in October 1995. Where a pre-existing disease or injury is noted on an entrance examination, that pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 29 (1991). In this case, the Veteran's pes planus was noted upon entry, and the Veteran's service treatment record together with the Veteran's lay statements include at least some evidence demonstrating that the pre-existing disability increased in severity during service. Therefore, the presumption of aggravation attaches. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (stating that the question of whether a pre-existing defect or injury underwent an increase in severity "must be answered in the affirmative before the presumption of aggravation attaches"). Thus, the Board concedes a worsening while in service, and the relevant question that remains is whether there is clear and unmistakable evidence that the Veteran's pre-existing pes planus was not permanently worsened beyond the natural progress of the disability. In the current case, the Veteran was provided a VA medical examination from the New Orleans VAMC in October 2013. While the examination for pes planus was carried out by a VAMC podiatrist, and while the medical examination claims that “[t]here is no evidence of direct in-service injury that would have worsened the natural progression of pes planus,” the medical opinion does not describe how the Veteran’s pes planus diagnosis would have naturally progressed to its current state. While the VA examiner checked a box describing “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness,” the rationale to that statement is conclusory. The medical diagnosis, does not provide an adequate rationale, and it is conclusory as to the lack of potential aggravation of pes planus while the veteran was in service. Since the VAMC examination offered a conclusory and inadequate rationale, there is insufficient medical evidence to decide the claim. The Board must remand the issue so that an adequate medical examination can be obtained. The matter is REMANDED for the following action: 1. Obtain and all outstanding private and VA treatment records, to include treatment records from Jennifer L. Kuba, DPM. Associate such records with the Veteran’s electronic claims record. Specifically, concerning private treatment records, contact the Veteran and obtain authorizations for release of information. Advice the Veteran that he may submit his private treatment records if he so chooses. If a negative response is received from any private or federal treatment provider, the claims file should be properly documented in this regard and the Veteran so notified. 2. Thereafter, return the claims file to the October 2013 VA examiner, or, if the examiner is unavailable, to another suitably qualified examiner, to provide an addendum opinion as to the etiology of the Veteran’s bilateral foot disability, to include his bilateral pes planus. The examiner must note that the claims file was reviewed. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. After a review of the claims file, the examiner must respond to the following: Is there clear and unmistakable evidence that the Veteran's pre-existing bilateral pes planus was not permanently worsened beyond the natural progress of the disability? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service." If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of bilateral pes planus by the Veteran's active duty service. (Continued on the next page)   3. Ensure that the examination reports are adequate. If deficient in any manner, return the report to the examiner as inadequate. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel