Citation Nr: 21062037 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-36 057A DATE: October 6, 2021 REMAND Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to February 1976, April 1976 to February 1977, and June 1988 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 Rating Decision from the VA Regional Office (RO) in Philadelphia, Pennsylvania. When there exists a remand, from either the United States Court of Appeals for Veterans Claims (CAVC) or the Board, a veteran is entitled to substantial compliance with those remand directives. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In a March 2019 Decision, the Board remanded this claim. It instructed VA to afford the Veteran an initial examination and opinion. The examiner was to answer whether the Veteran's bilateral pes planus was related to service including an August 1988 in-service motor vehicle accident. Before VA conducted that development, the Veteran submitted in March 2019, a letter from Dr. S.J., who stated the following: While . . . [the Veteran] was in the military she was exposed to harsh physical training and duty. The excessive running and standing weakened her posterior tibial tendons bilateral causing her pes planus deformity bilateral. In my professional opinion there is a more likely than not chance that her pes planus deformity is related to her military service. In adhering to the Board's instructions, VA provided the Veteran an examination in March 2020. In opining that the Veteran's pes planus was note related to service, that examiner stated the following: I have reviewed the letters of support from her treating podiatrist. I have also reviewed her STR's. She was seen on one occasion for foot pain. She was diagnosed w/ bilateral blisters. There is NO mention of flat feet or posterior tibialis tendon[i]tis which may have contributed to her developing pes planus Remand regrettably is unavoidable, as neither opinion is adequate, and the Veteran has not been afforded substantial compliance. The CAVC has discussed various factors to consider when assessing whether a medical opinion is adequate: [W]hether there was personal examination of the patient; the expert's knowledge and skill in analyzing the data; whether the opinion contains clear conclusions with supporting data and a reasoned medical explanation connecting the two; whether the opinion is clear and susceptible of only one meaning; the expert's familiarity with pertinent medical history; whether there is any inconsistency in the expert's statements; whether the expert has provided a thorough and detailed opinion about an area within his or her expertise; whether the expert has provided factually accurate, fully articulated, and sound reasoning for his or her conclusion; whether the expert relied on sufficient facts or data; whether the opinion is the product of reliable principles and methods; and whether the opinion is the result of principles and methods reliably applied to facts. McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (citations omitted). Dr. S.J.'s opinion is not adequate because it contains a blanket statement that the Veteran's pes planus is related to "excessive running and standing." There is no indication that Dr. S.J. examined the Veteran. There is no discussion about the Veteran's service treatment records, post-service medical records, or any prevailing medical literature supporting Dr. S.J.'s theory. Furthermore, the opinion lacks clear conclusions with supporting data and a reasoned medical explanation connecting the pes planus and service. With so many deficiencies the Board cannot accept this opinion as adequate to award service connection. See ibid. The March 2020 VA examination also is inadequate. The examiner premises her opinion solely on the fact that the Veteran had in-service complaints of blisters only and that there was no in-service documentation of flat feet or posterior tibialis tendonitis. An opinion that places its full weight behind the lack of in-service documentation is no opinion at all. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (discussing that a medical opinion solely premised on a lack of an in-service injury is inadequate). Furthermore, this opinion contains no discussion about the Veteran's originally proposed theory of entitlement: that her pes planus is a result of an in-service motor vehicle accident. The examiner was instructed to consider on remand that theory. Her failure to do so further renders the opinion inadequate. Because the agency of original jurisdiction (AOJ) has not ensured substantial compliance with the Board's directives, remand again is required. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: 1. Obtain an addendum to the March 2020 VA medical opinion. The addendum shall answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's pes planus occurred in, or is the result of, her period of active duty service, to include the general rigors of service and/or her in-service motor vehicle accident? In responding to the latter theory, the opinion must address Dr. S.J.'s March 2019 letter. Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.