Citation Nr: 21000407 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-14 482 DATE: January 5, 2021 REMANDED Entitlement to service connection for a bilateral foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2006 to May 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 and December 2019, the Board remanded the appeals for further development. The issues have now been returned to the Board. Entitlement to service connection for bilateral foot disorders is remanded. In its December 2019 remand, the Board directed that the Veteran be provided a VA examination to address the nature and etiology of his claimed bilateral foot disorders, to include pes planus. The examiner was to opine whether any foot disorder was related to an injury or illness during active-duty service or caused or aggravated by any other service-connected disorder. In January 2020, a VA examiner diagnosed a current bilateral metatarsalgia, but not pes planus or tinea pedis. The examiner opined that the metatarsalgia was less likely than not related to the Veteran’s active-duty service on the basis that no “chronic condition” was “documented in the contemporaneous service treatment records.” The examiner did not address whether pes planus was related to active-duty service, reasoning that pes planus was not found on examination at that time. The examiner further opined that it was less likely than not that a foot disorder was aggravated by a service-connected disorder but did not separately address whether any foot disorder was proximately due to a service-connected disorder. The requirement of having a current disability is met “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Here, the Veteran filed his claim for entitlement to service connection for bilateral foot disorders on July 24, 2008, and a June 2009 Army Reserve examination showed a diagnosis of left foot pes planus. As pes planus was diagnosed during the claims period, a medical opinion must be obtained addressing whether that disorder is related to the Veteran’s active-duty military service. Additionally, the lack of medical documentation alone is not a valid basis for a medical opinion where the Veteran’s lay statements must be considered. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). The January 2020 examiner noted the Veteran’s reports of an onset of foot symptoms in service with worsening symptoms since onset but appears to have dismissed those lay reports based on the lack of corroborating documentation alone. Remand is also required to obtain a medical opinion which considers this lay evidence. Finally, causation and aggravation are independent concepts requiring separate findings and rationales. Atencio v. O’Rourke, 30 Vet. App. 74 (2018). The January 2020 examiner failed to separately address whether any foot disorder was proximately caused by any service-connected disability as directed by the Board’s December 2019 remand. Another remand is required to ensure compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any foot disorder. In-person examination is not required unless deemed necessary by the examiner. The examiner must answer the following questions: (a.) What diagnosed foot disorders have been present since July 24, 2008, to include metatarsalgia, pes planus and tinea pedis? (b.) For each such disorder, is it at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease, to include the rigorous physical demands of military service? (c.) For each such disorder, is it at least as likely as not proximately due to any service-connected disability? (d.) For each such disorder, is it at least as likely as not aggravated beyond its natural progression by any service-connected disability? (e.) Is the Veteran’s left foot pes planus a (1) congenital “disease” or (2) a congenital or developmental “defect?” For VA purposes, “defects” are usually static in nature, whereas “diseases” are generally subject to episodic improvement or worsening. (f.) If the Veteran’s diagnosed left foot pes planus is a congenital or developmental defect, is it is at least as likely as not that a superimposed disease or injury occurred during military service that resulted in an additional disability apart from the congenital or developmental defect? (g.) If the Veteran’s diagnosed left foot pes planus is a congenital disease, was it aggravated (worsened) by the Veteran’s military service? If there was worsening, was this due to the natural progress of the disease? The examiner must discuss the Veteran’s lay report of an onset of bilateral foot pain in service with worsening symptoms since onset. If the examiner finds the lay reports are insufficient to support the claim, the examiner must clearly explain why that is the case. Please be aware that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.