Citation Nr: 21001426 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-37 890 DATE: January 8, 2021 REMANDED Entitlement to service connection for bilateral foot arthritis is remanded. Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from September 1975 to April 1976. This matter originally came before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied (1) service connection for bilateral pes planus and (2) service connection for bilateral foot arthritis. In October 2015, VA received the appellant’s Notice of Disagreement (NOD) with the denial of service connection for bilateral pes planus. A Statement of the Case (SOC) addressing that claim was issued in June 2016. A timely substantive appeal was received in August 2016. In an August 2019 decision, the Board denied service connection for bilateral pes planus. The appellant appealed the Board’s August 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). While the appeal was pending before the Court, in June 2020, the appellant’s then-attorney and VA’s General Counsel filed a Joint Motion for Remand. In June 2020, the Court granted the parties’ motion, vacated the Board’s August 2019 decision, and remanded the matter for action consistent with the terms of the joint motion. 1. Entitlement to service connection for bilateral pes planus 2. Entitlement to service connection for bilateral foot arthritis. As set forth above, in the October 2015 rating decision on appeal, the RO denied service connection for (1) bilateral pes planus and (2) service connection for bilateral foot arthritis. The appellant appealed only the former and in its August 2019 decision, the Board addressed only service connection for pes planus. In the June 2020 joint motion, however, the parties agreed that “the Board failed to address all theories of entitlement reasonably raised by the record.” See Joint motion at page 4. The parties noted that “Appellant has been diagnosed with degenerative or traumatic arthritis of the feet. Despite this clear diagnosis, the Board failed to discuss Appellant’s entitlement to service connection of this disability.” Joint motion at page 5. Despite questions of jurisdiction, the Board finds that the directives in the joint motion are the law of the case and the issue of service connection for bilateral foot arthritis must be addressed. Also in the joint motion, the parties agreed that the October 2015 medical opinion obtained by VA was inadequate. Specifically, the parties agreed that the examiner provided an inadequate rationale for his opinion that the appellant’s arthritis was less likely than not related to service. See Joint motion at pages 2-3 (“T]he parties agree that this opinion “was inadequate to satisfy the duty to assist, and so vacatur of the Board’s decision is appropriate for the Board to obtain a new VA medical opinion that contains adequate medical analysis addressing whether the current arthritis is related to the in-service injury.” The matters are REMANDED for the following action: 1. The appellant should be scheduled for a VA medical examination to determine the nature and etiology of any current bilateral pes planus and bilateral foot arthritis. After examining the appellant and reviewing the record, the examiner should provide an opinion as to the following: (a) Is at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing pes planus increased in severity during service beyond any temporary flare-up? Consideration should be given to the service treatment records and the lay statements. (b) If so, then the examiner should provide an opinion as to whether it is undebatable from a medical perspective that any increase in the preexisting bilateral pes planus was due to the natural progress of the disease. (c) Is it at least as likely as not that the current bilateral foot arthritis had its inception during active service, was manifest to a compensable degree within one year of discharge, or is otherwise causally related to an in-service disease or injury? K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.