Citation Nr: 21002848 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 09-36 934 DATE: January 15, 2021 REMANDED Entitlement to service connection for bilateral flat feet is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1983 to August 1991. Thereafter, he served in the Tennessee National Guard and was called for active duty from February 2003 to July 2003 and from December 2003 to April 2005. There is also evidence of record that the Veteran may have been activated from September 7, 2005, to September 30, 2005, following Hurricane Katrina, but this service has not been verified. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that, although the Veteran filed a claim for service connection for hammer toes, the medical evidence of record documents numerous foot conditions, including flat feet, thus, the Board has recharacterized the issue as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim includes any disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). The Board notes that the August 2016 Board decision determined four separate foot disabilities were on appeal, metatarsalgia, hallux valgus, flat feet, and hammer toes. The August 2016 Board decision granted service connection for hallux valgus and metatarsalgia. In March 2017, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral hammertoes. Therefore, that issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (because appellant’s first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). In February 2014, the Veteran testified before a Veteran’s Law Judge (VLJ) at a travel board hearing. The transcript of that proceeding has been associated with the claims file. This hearing was before a now-retired judge VLJ. In a September 2020 correspondence, the Veteran was given the opportunity to request another hearing. The September 2020 letter notified the Veteran if he did not respond it would be assumed that he did not want a new hearing. The Veteran did not respond to the letter. As such, the Board will proceed without another hearing. 1. Entitlement to service connection for bilateral flat feet. The Veteran contends that his bilateral pes planus is etiologically related to service. The Veteran has a current diagnosis of bilateral pes planus and he was diagnosed with pes planus in-service in November 1983. The primary issue in this appeal is whether the Veteran’s pes planus is a congenital defect, disease that was aggravated in-service, or if his current pes planus is etiologically related to his in-service diagnosis of pes planus. In March 2019, the Veteran underwent a VA foot examination. The examiner diagnosed the Veteran with bilateral pes planus. In May 2019, a VA medical opinion was obtained in conjunction with the March 2019 examination. The May 2019 examiner found the Veteran’s flat feet were considered a congenital defect. The examiner reasoned that the Veteran was diagnosed with it in October 1983 and November 1983. The examiner addressed the fact that the Veteran’s flat feet were not found on the Veteran’s entrance examination. The examiner stated the lack of flat feet or any history of foot problems on the Veteran’s May 1983 enlistment examination report means that was the report of information and findings rendered at the time and it is possible flat feet were not noted, observed, or reported at that time. The examiner noted that it is possible that the flat feet were not present. The examiner explained that the lack of flat fleet reported in May 1983 also may mean it was not present at that time and developed between then and October 1983, five months later. The examiner stated that he is not able to choose which it was or was not in retrospect. The examiner provided an additional addendum medical opinion in August 2019. The examiner found there was not an additional disability superimposed upon the Veteran’s congenital defect during the Veteran’s service. The examiner, citing the VA September 2016 medical examination opinion, reasoned that a record review shows no on-going treatment or complaints of his feet other than noting he had congenital pes planus that he was seen for in October 1983 and November 1983 and left ankle pain in October 1988. The Veteran did not have any ongoing problems with his flat feet. The examiner again citing the September 2016 examination report, noted that after service there was no disability from any event or events during service and he served as a postal mail carrier for many years. The examiner did note that an additional superimposed disability occurred in his lifetime. The examiner explained the Veteran complained of medial arch pain with weight bearing in an August 2017 podiatry consult. The Veteran was diagnosed with collapsing pes planus. The examiner noted that the progression from no complaints to later in life was an additional disability superimposed upon the Veteran’s congenital defect during his lifetime. The examiner opined the superimposed collapsing pes planus is less likely than not related to any injury or event in-service. The examiner reasoned, again citing the September 2016 VA examination report, that since service there was no ongoing problems with the Veteran’s feet and after service there was no disability of his feet from any event or events occurring during service and the Veteran served as a postal mail carrier for many years. The Board finds that the May 2019 VA medical opinion is not adequate for adjudication. The examiner did not provide any rationale as to why the Veteran’s flat feet were considered a congenital defect. The examiner notably explained that flat feet in general could be acquired, and it was possible that the Veteran could have acquired flat feet in October 1983 and November 1983, five months after entrance into service. The examiner’s explanation that he was not able to choose as to whether the Veteran acquired flat feet in October 1983, or it was simply missed on the Veteran’s entrance examination, appears to contradict his opinion that the Veteran’s pes planus was a congenital defect. The Board notes that a congenital defect cannot be service connected because by its nature (occurring at birth) preexists service. Further, the May 2019 VA examiner’s opinion that the Veteran’s pes planus is not a congenital disease (a disability of capable of improving or deteriorating) is unclear. The examiner found the Veteran’s collapsing pes planus was a superimposed disability upon the Veteran’s pes planus congenital defect. It is unclear how acquired pes planus can be superimposed on a congenital defect of the same condition without be considered a worsening of the disease, thus a considered a congenital disease. Therefore, the Board finds the examination is inadequate, and a remand for another opinion is required. The matters are REMANDED for the following action: 1. Obtain a VA addendum medical opinion from an appropriate clinician to determine the nature and etiology of any bilateral pes planus. Specifically, the examiner should answer the following: (a.) Please opine as to whether the Veteran’s bilateral pes planus is a congenital disease, a congenital defect, or an acquired disorder. The examiner is advised that for purposes of VA compensation, a congenital defect is defined as a condition that is more or less stationary in nature, whereas a congenital disease is defined as a condition capable of improving or deteriorating. (b.) If the Veteran’s bilateral pes planus is a congenital defect, was this defect subject to a superimposed disease or injury during service? If the answer is “Yes,” please describe the resultant disability. The examiner must also discuss the September 2017 diagnosis of collapsing pes planus as it relates to whether the Veteran’s pes planus is capable of deterioration. (c.) If it is determined to be a congenital disease or it was acquired, please offer an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the pre-existing bilateral pes planus (noted on entrance examination) underwent an increase in severity during service, and if YES, whether such increase was clearly and unmistakably due to the natural progress of the condition. The examiner must discuss the lack of finding of flat feet on the Veteran’s May 1983 entrance examination and the later diagnosis of flat feet in November 1983. The examiner must discuss the fact that the Veteran required the use of shoe inserts during treatment for his pes planus in November 1983 (at the beginning of his first period service). A complete medical rationale must be provided for all opinions. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.