Citation Nr: 21001022 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-27 498 DATE: January 6, 2021 REMANDED The issue of service connection for a bilateral foot disorder, to include pes planus (flat feet) is remanded. REASON FOR REMAND The Veteran served on active duty in the U.S. Army from August 1981 to November 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision of the New Orleans, Louisiana Regional Office (RO). In May 2013, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claim. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In October 2020, the Board remanded the appeal to the RO for additional action to comply with directives issued by the Court of Appeals for Veterans Claims (Court). Substantial compliance with the Board’s remand directives was not completed and the Board must again remand the matter. Stegall v. West, 11 Vet. App. 268 (1998). Bilateral foot disorder The matter is remanded for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR In October 2020, the Board remanded this matter pursuant to an order by the Court for a VA addendum to determine whether the Veteran’s bilateral foot disorder was a congenital/developmental defect or a congenital disease and an accompanying etiology opinion. The October 2020 VA examiner indicated that the Veteran’s bilateral foot disorder was “congenital” – without identifying whether it was a congenital defect or disease – and relied on previous inadequate VA medical opinions as supporting rationale. Stegall, supra; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) (holding that medical clarification is necessary as to whether a veteran’s condition is a congenital/developmental defect or congenital disease). In his December 2020 brief, the Veteran through his representative questioned the competency of the October 2020 VA examiner – a VA Nurse Practitioner – and contended that the October 2020 VA medical opinion was inadequate, and therefore, not substantially compliant. THE RO ADJUDICATOR IS ADVISED THAT UNDER RECENTLY ISSUED COURT DECISION, when a challenge to an examiner’s competence is presented, VA must respond to that contention by demonstrating the examiner’s competence. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Alternatively, another VA examination or RESPONSIVE opinion may be obtained. THE BOARD AND THE RO HAVE NO DISCRETION TO IGNORE THE REMAND DIRECTIVES. ABSENT A GRANT OF THE BENEFIT, IF THE DIRECTIVES ARE NOT SUBSTANTIALLY COMPLIED WITH THIS MATTER WILL BE REMANDED. 2. OBTAIN AN OPINION BY A PODIATRIST TO RESPOND TO THE INQUIRIES BELOW. IF AN EXAMINER OR THE RO FIND IT NECESSARY, SCHEDULE THE VETERAN FOR A VA EXAMINATION WITH A VA PODIATRIST TO OBTAIN AN OPINION AS TO THE NATURE AND ETIOLOGY OF THE VETERAN’S BILATERAL FOOT DISORDER. All relevant medical and non-medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. BY COURT ORDER, THE EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: Is the Veteran’s bilateral foot disorder, to include pes planus, a congenital/developmental defect? If the Veteran’s bilateral foot disorder is a congenital/developmental defect, was there a superimposed disease or injury due to the military boots the Veteran wore during basic training that resulted in a bilateral foot disability apart from the congenital/developmental defect? Is the Veteran’s bilateral foot disorder a congenital disease? If the Veteran’s bilateral foot disorder is congenital disease, was it aggravated beyond its natural progression by the military boots the Veteran wore during basic training? Although the examiner must review the VBMS file, his or her attention is drawn to the following: • In the Veteran’s July 1981 pre-entrance medical examination report, no foot abnormalities were noted. The Veteran was assigned a “1” rating under the PULHES profile system indicating that his lower extremities were then in a high level of fitness. • In his July 1981 pre-entrance medical history report, the Veteran answered in the negative to the question of whether he then had, or once had foot trouble. • In a November 1981 entrance physical standards board proceeding, the service medical examiner indicated that the Veteran’s onset of foot pain was two weeks into service. The Veteran was treated by an in-service podiatrist, arch supports and a limited duty profile without relief. The Veteran reported having had flat feet his entire life and controlled the pain by wearing tennis shoes. He was diagnosed with pes planus. • In the June 2010 VA examination, the Veteran reported experiencing no bilateral foot trouble prior to service entrance; however, the Veteran reported experiencing bilateral foot pain from running and marching in boots during service. The Veteran was diagnosed with symptomatic bilateral pes planus. A VA foot radiograph revealed decreased calcaneal pitch. • In the July 2010 notice of disagreement, the Veteran reported that the military boots he was issued during service hurt his feet from a 27-mile march. • In an August 2010 private treatment record, the Veteran reported experiencing bilateral foot pain since service due to in-service running and weight-bearing. A bilateral foot radiograph revealed arthritic change and no evidence of an acute injury, fracture, or dislocation. The Veteran was diagnosed with pes planovalgus foot type, posterior tibial tendon dysfunction, equinus bilaterally and pain bilaterally. • In a September 2010 private treatment record, the Veteran reported experiencing bilateral foot pain. He was diagnosed with posterior tibial tendon dysfunction stage II, equinus bilaterally, pain and hyperkeratosis. • In an October 2010 private treatment record, the Veteran reported experiencing intermittent bilateral foot pain. He was diagnosed with posterior tibial tendon dysfunction stage III, equinus bilaterally and pain. • In his September 2012 substantive appeal, the Veteran asserted that his bilateral pes planus existed prior to service and that the military boots and physical demands of service had permanently aggravated his bilateral foot disorder. • In a November 2012 private treatment record, the Veteran was diagnosed with bilateral hammertoes, onychomycosis, onychodystrophy and calluses bilaterally without ulcers. • In the May 2013 Board hearing, the Veteran testified that he was not aware of having had flat feet prior to service and experienced no bilateral foot pain or symptoms prior to service. The Veteran also testified that the first onset of bilateral foot pain was several weeks into service due to the marching and physical training with small and tight military boots. • In the March 2015 VA examination, the Veteran reported experiencing flat feet his entire life. He was diagnosed with bilateral flat foot. 3. Ensure that the VA examiner has complied with the remand instructions and readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.