Citation Nr: 20050120 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 12-19 825 DATE: July 28, 2020 REMANDED Entitlement to service connection for bilateral feet disorder is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO), which denied the issues on appeal. The Veteran testified at a Videoconference hearing before a Veterans Law Judge (VLJ) in January 2014. The hearing transcript is of record. The Veteran declined the opportunity for another hearing. The Board remanded the claim in April 2015, October 2016 and December 2017 for further development by the originating agency. The case was returned to the Board for further appellate action. 1. Entitlement to service connection for bilateral feet disorder is remanded. In April 2020, the Veteran submitted a copy of his 1982 enlistment exam, which indicated that he was diagnosed with pes planus. This enlistment exam had not previously formed part of the record and bears directly on the Veteran’s prior contentions that he was diagnosed with pes planus upon entrance and experienced symptoms during his military service. See March 2011 VA examination, January 2014 Hearing Transcript, July 2011 private treatment records from Dr. R.F. In March 2018, as further clarified by the April 2019 Addendum/Clarification, the VA examiner had opined that there was no evidence that the Veteran’s foot condition was incurred or aggravated in service because the enlistment exam was unavailable for review, among other reasons cited (namely, the service treatment records did not contain any mention of foot conditions and that the 1990 re-enlistment exam indicated normal results for a foot exam). However, the VA opinion is inadequate. The VA opinion is based on the fact that the enlistment exam was missing. This fact is now proven false. The enlistment exam is now on the record and available for review by the VA examiner. The case must be returned for an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that a medical examination should take into account the records of prior medical treatment so that the claimed disability evaluation will be a fully-informed one and that once the VA undertakes an examination it must provide an adequate one). The Board cannot make a fully-informed decision on the matter because the enlistment exam has been missing until now. Where, as here, a preexisting disorder is noted upon entry into service, then the presumption of aggravation under 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a) will be triggered so long as the Veteran demonstrates a worsening of his condition in service. The VA examination should include an opinion on whether the Veteran’s bilateral feet disorder was aggravated in service, and the RO should undertake an analysis of whether the presumption of aggravation is satisfied. Furthermore, the discovery of the long-missing entrance exam casts doubt on the Board’s prior finding that the Veteran’s Army service treatment records are unavailable. See December 2010 and March 2011 Formal Finding on the Unavailability of Service Records. The discovery indicates that other service treatment records may exist. As VA has a heightened duty to assist where service records are missing, further efforts are required and remand is necessary to prevent the error of failing to fulfil completely this duty. 38 U.S.C. § 5103A. 38 C.F.R. § 3.159 See Daye v. Nicholson 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Finally, the RO has still not issued a formal finding of unavailability of the service treatment records from the Tennessee Army National Guard, as directed in the Board’s October 2016 and December 2017 remands. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial[]” compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. 2. Entitlement for service connection for hypertension is remanded. The Veteran has contended that he experienced high blood pressure readings during service. See January 2014 Hearing Transcript. However, having examined the claims file, the March 2018 VA examiner opined that there was no evidence that the Veteran’s hypertension was incurred or aggravated in service because the service treatment records did not mention elevated blood pressure. The examiner opined against service connection. As discussed above, the Veteran’s discovery of the enlistment exam indicates that other service treatment records may exist and be obtainable. As VA has a heightened duty to assist where service records are missing, further efforts are required and remand is necessary. 38 U.S.C. § 5103A. 38 C.F.R. § 3.159 See Daye v. Nicholson 20 Vet. App. 512, 515 (2006); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This is particularly important where, as above, the absence of the service treatment records was the basis of the VA examiner’s opinion. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Contact the Veteran to ask him how and where he found the 1982 enlistment exam and take any further actions necessary to obtain other service treatment records, including contacting any relevant agencies. Afford the Veteran and his representative a reasonable opportunity to respond to all inquiries and submit any other service treatment records. If any additional records are located or submitted by the Veteran, the records should be associated with the Veteran’s claims file. As part of this request, ask that the Veteran submit more legible copies of (1) the 1982 enlistment exam and (2) a chart he submitted in April 2020, if available. If submitted, associate the records with the Veteran’s claims file. 3. Issue a formal finding of unavailability of the service treatment records from the Veteran’s Army National Guard service and associate it with the Veteran’s claims file. 4. Following completion of directives #1 - 3, obtain an addendum opinion from the VA examiner who performed the March 2018 examination or an appropriate medical professional if the examiner is unavailable. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether it is as least as likely as not (a 50 percent probability or greater) that any currently diagnosed hypertension is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. All testing deemed necessary, to include a full VA examination if appropriate, must be conducted. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. 5. Following completion of directives #1 - 3, obtain an addendum opinion from the VA examiner who performed the March 2018 examination or an appropriate medical professional if the examiner is unavailable. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner is asked to opine on whether bilateral pes planus as noted on the May 1982 enlistment examination increased in severity during service beyond the natural progress of the disease (that is, a pre-existing disability was aggravated by service); and if so, whether there is clear and unmistakable evidence that increase is due to the natural progress of the disability. Note that “clear and unmistakable evidence” means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. The examiner is also asked to opine for any other period of service whether it is as least as likely as not (a 50 percent probability or greater) that any currently diagnosed bilateral feet disorder is etiologically related (caused or aggravated), in whole or in part, to the Veteran’s active service. All testing deemed necessary, to include a full VA examination if appropriate, must be conducted. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.