Citation Nr: 18156539 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 11-03 348 DATE: December 11, 2018 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty service from October 1973 to April 1975. Although the Board regrets the further delay, an additional remand is required for further development and adjudicative action consistent with the April 2015 Memorandum Decision from the Court of Appeals for Veteran’s Claims (Court) as well as the Board’s prior April 2017 and August 2017 remand directives. The record contains an October 2017 VA examination and opinion; the examiner provided a negative opinion finding, in part, that the Veteran did not have any documented foot ailments or aggravation while in the military and that there was no mention of a foot aggravation or ailment until 2011. In June 2018, the Board requested a Veteran’s Health Administration opinion. The medical professional provided a negative opinion and found, in part, that the Veteran had “no documented injury or exacerbation during his active duty.” The Board finds both of these are opinions are inadequate. First, the Veteran’s service treatment records reflect he received treatment for painful feet and heels twice during service and was also given a temporary profile due to foot pain; the October 2017 and June 2018 opinions fail to acknowledge the Veteran’s documented in-service complaints, and therefore, they are based on an inaccurate factual premise, and are inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Moreover, neither opinion considers and discusses the Veteran’s lay statements regarding the onset and continuity of symptoms he experienced, as required by the Court’s April 2015 Court’s Memorandum Decision as well as the Board’s April and August 2017 remand directives, which are reiterated below in the instant remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board finds a new opinion and examination is required on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As required by the Board’s prior remand directives, the examination and opinion should be completed by an examiner other than the one who provided the April 2016 and April 2017 medical opinions. See Stegall, 11 Vet. App. at 271. Once completed, in order to avoid an additional remand, the Agency of Original Jurisdiction (AOJ) must review the opinion to ensure it is adequate and complies with the Board’s specific remand instructions. The Board emphasizes to the AOJ that compliance with the Board’s remand directives is not discretionary or optional. See Stegall, 11 Vet. App. at 271. The matter is REMANDED for the following action: 1. Provide the Veteran with a new VA examination, conducted by a different VA medical professional than the one who provided the April 2016 and April 2017 opinions, to determine the etiology of his bilateral pes planus. All studies, tests, and evaluations deemed necessary by the examiner should be performed and the results noted in the report. The examiner must obtain from the Veteran and include in the examination report a complete history of the onset and continuity of symptoms before, during, and since separating from active duty service. Following an examination and a complete review of the record, and with consideration of the medical and lay evidence of record, the examiner is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s bilateral pes planus was aggravated due to his active duty service. The examiner is informed that a preexisting injury or disease will be considered to have been aggravated by active duty 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. Evidence of a preexisting condition being asymptomatic during service, with an exacerbation of symptoms during service, does not constitute aggravation unless the underlying condition itself, contrasted with mere symptoms, has worsened. In providing this opinion, the examiner must specifically consider and discuss the medical and lay evidence in the including, but not necessarily limited to: • The service entrance examination documenting bilateral pes planus which was non-disabling at that time; • The report of medical history completed at service entrance where the Veteran denied a history of foot problems; • The instances of treatment for bilateral foot pain during service (August 1974 and February 1975); • The February 1975 physical profile for restricted duty based upon the Veteran’s bilateral foot pain; • The report of medical history completed at service discharge in which the Veteran reported a history of foot problems; and • The Veteran’s lay statements and testimony in which he reported that he had no symptoms of foot problems prior to service, that he developed bilateral foot pain during service, and that he has continued to experience foot pain since service discharge. For purposes of this examination, the VA examiner should presume the Veteran’s lay statements to be credible. A complete rationale for this opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. 2. The Agency of Original Jurisdiction MUST review the requested examination report and opinion to ensure it is adequate and complies with the Board’s specific remand directives. If deficient in any manner, corrective action must be taken at once. 3. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). If the Veteran does not report for any scheduled examination, documentation showing he was properly notified of the examination must be associated with the record. 4. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel