Citation Nr: 18153670 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-52 692 DATE: November 28, 2018 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1991 to February 1996 and from August 1996 to April 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A July 1990 enlistment examination noted that the Veteran had asymptomatic pes planus. Thus, the presumption of soundness does not apply in this case. In April 2014, the Veteran was afforded a VA examination in connection with the claim. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so doing, he noted the Veteran’s discharge examination indicated he had normal feet. However, the Board notes the examiner used the incorrect legal standard, as the question in this case is whether the preexisting disorder was aggravated by service rather than whether the disorder was incurred therein. Therefore, an additional medical opinion is needed. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for bilateral pes planus. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any bilateral pes planus that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions or statements by the Veteran. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. It should be noted that the presumption of soundness does not apply for pes planus, as the disorder was noted at the time of the Veteran’s enlistment examination. The examiner should state whether it is at least as likely as not that the Veteran’s preexisting pes planus was aggravated by his military service. In so doing, he or she should address whether there was any increase in the severity of the disorder during service. If so, the examiner should also discuss whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology. In responding to this question, the examiner should note that temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history,” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel