Citation Nr: 18157248 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 17-22 710 DATE: December 12, 2018 REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection a low back disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to bilateral pes planus, is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1953 to July 1953, and from July 1955 to July 1957. 1. Entitlement to service connection for bilateral pes planus is remanded. The Veteran seeks service connection for bilateral pes planus, which he claims pre-existed service and was aggravated by it. At the outset, the Board notes that the Veteran’s service treatment records are incomplete. When service records are incomplete, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In support of his claim, the Veteran submitted an April 2016 independent examination report wherein a physician opined, following an examination of the Veteran, that the Veteran’s bilateral pes planus pre-existed service and was aggravated during basic training by prolonged walking and standing while wearing combat boots and dress shoes. As such, current medical evidence of record tends to show that the Veteran had pes planus prior to enlistment. In order to rebut the presumption of sound condition under 38 U.S.C. §1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board notes that the available service treatment records contain a July 1953 discharge examination report that did not include “notation” of a pes planus, and his feet were clinically evaluated as normal. A transfer to Army Reserves examination report dated May 1957, noted asymptomatic pes planus. No disqualifying defects were found. The Board notes that the April 2016 private medical evaluation and opinion report does not sufficiently rebut the presumption of soundness as required under 38 U.S.C. § 1111. As the Veteran has not been afforded an examination, consistent with VA’s heightened duty to assist, the Board finds that a VA examination is required before this claim may be adjudicated. See 38 C.F.R. § 3.159 (c)(4), McClendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection low back disability, to include as secondary to bilateral pes planus, is remanded. 3. Entitlement to service connection for a left hip disability, to include as secondary to bilateral pes planus, is remanded. 4. Entitlement to service connection for a right hip disability, to include as secondary to bilateral pes planus, is remanded. 5. Entitlement to service connection for a left knee disability, to include as secondary to bilateral pes planus, is remanded. 6. Entitlement to service connection for a right knee disability, to include as secondary to bilateral pes planus, is remanded. 7. Entitlement to service connection for a left ankle disability, to include as secondary to bilateral pes planus, is remanded. 8. Entitlement to service connection for a right ankle disability, to include as secondary to bilateral pes planus, is remanded. Concerning the claims for service connection for a low back disability, bilateral hip disorders, bilateral knee disorders, and bilateral ankle disorders, these are claimed, at least in part, as secondary to bilateral pes planus being remanded for additional development. In support of his claim, the April 2016 private physician opined that the veteran’s low back disability, bilateral hip disorders, bilateral knee disorders, and bilateral ankle disorders, were secondary to bilateral pes planus. These claims are therefore inextricably intertwined with the claim for bilateral pes planus, and the claims must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his pes planus, low back, hips, ankles and knees. After securing the necessary release, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. If possible, the Veteran should submit these and any other pertinent records himself, including any service treatment records in his possession, in order to expedite the case. 2. Obtain updated VA treatment records. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA examination to address the claim for service connection for bilateral pes planus. The claims file must be provided to the examiner for review in conjunction with the examinations. After review of the file and examination of the Veteran, the examiner should offer an opinion as to the following: a) Whether there is clear and unmistakable evidence that the Veteran’s bilateral pes planus pre-existed service. In formulating the opinion, the examiner should comment on the April 2016 private medical opinion report, and the available service treatment records, to specifically include the May 1953 and May 1957 examination reports. Note that “clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. b) If so, whether there is clear and unmistakable evidence that the Veteran’s pre-existing bilateral pes planus disorder was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). c) If there is no clear and unmistakable evidence that the Veteran’s bilateral pes planus disorder pre-existed service and was not aggravated by service, whether it is at least as likely as not (a probability of 50 percent or greater) that his pes planus had onset during any period of the Veteran’s military service, or is otherwise related to any aspect of the Veteran’s service, to include any injuries incurred therein. The rationale for all opinions rendered must be provided. d) In answering the foregoing, the examiner should note that the Veteran is considered competent to report the events that occurred during service, as well as the symptoms he experiences, including when those symptoms were incurred and how long they have persisted. The examiner is instructed that the Veteran’s complete service treatment records were determined to be unavailable, and is reminded that, because of the unavailability, VA has a heightened duty to assist the Veteran. 4. If, and only if, service connection is established for bilateral pes planus, a VA medical opinion to determine whether a low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, is secondary to the service-connected pes planus. If examination is deemed necessary, one should be scheduled. The Veteran’s claims file must be available to the examiner for review. Following a review of the file and an examination of the Veteran the examiner is asked to address the following: a) Is it at least as likely as not (50 percent probability or greater) that a low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, was caused by his service connected pes planus, to include any gait disturbance and weight shifting? The examiner should explain why or why not. b) If not caused by the service-connected pes planus, is it as likely as not that a low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, is permanently worsened in severity beyond the natural progress of the condition (as opposed to a temporary exacerbation of symptoms) by the service-connected bilateral pes planus, to include any gait disturbance and weight shifting? Please explain why or why not. If a permanent worsening of a low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, beyond natural progression is found, the examiner should, to the extent possible, attempt to quantify the amount of worsening of the low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, beyond the baseline level of disability related to the service-connected pes planus. c) If not caused or aggravated by the service-connected pes planus, is it at least as likely as not (50 percent probability or greater) that a low back disability, bilateral hip disorders, bilateral knee disorders, and/or bilateral ankle disorders, is related to service. The rationale for all opinions rendered must be provided. The examiner is also asked to comment on (express agreement or disagreement with) the opinion offered by the private clinician in April 2016. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs