Citation Nr: 21062302 Decision Date: 10/07/21 Archive Date: 10/06/21 DOCKET NO. 14-08 638 DATE: October 7, 2021 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1993 to November 2004 and from June 2007 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a September 2020 decision, the Board denied entitlement to service connection for bilateral pes planus. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA, which vacated and remanded the September 2020 Board decision insofar as it denied entitlement to service connection for bilateral pes planus. In the May 2021 JMPR, the parties agreed that the September 2020 Board decision failed to provide an adequate statement of reasons or basis for several reasons including that the Board failed to discuss the adequacy of the November 2018 VA examination. Specifically, the parties noted that the November 2018 VA examiner's negative nexus opinion ignores lay statements made by the Veteran explaining why his service treatment records (STRs) were silent for evidence of pes planus, which were earlier acknowledged by the VA examiner, and noted that the VA examiner failed to state whether she found the Veteran's weight to be the cause of his pes planus. Entitlement to service connection for bilateral pes planus Upon review of the evidence of record, the Board finds that a remand is warranted for an addendum VA opinion to clarify the nature and origin of the Veteran's diagnosed bilateral pes planus. In this regard, the Veteran claims that his bilateral pes planus is related to wear and tear on his feet from his service duties, to include from wearing steel-toed boots. See July 2020 Correspondence. Specifically, he argues that prolonged standing and wearing of heavy boots in service, and without proper support, weakened/dropped his arches and resulted in ligament damage/strain. See March 2014 Correspondence. Based upon the medical evidence of record, it is unclear what impact, if any, this claimed wear and tear had on the Veteran's current diagnosis. As such, on remand, a VA examiner should specifically address and discuss the Veteran's statements that in-service wear and tear weakened his arches and that he strained the ligament that supports the arch of the foot. Moreover, the November 2018 VA examiner indicated in her rationale for her negative nexus opinion, which was reiterated in a September 2020 addendum opinion, that there are several causes of pes planus, to include obesity and stretched or torn tendons particularly the posterior tibial tendon. The medical evidence of record shows that the Veteran is obese and that he was assessed with bilateral dysfunction of the posterior tibial tendon of the feet. See November 2019 VA treatment record. As such, on remand, the VA examiner should clarify, if possible, the likely cause of the Veteran's pes planus. The Board also notes that although obesity is not a disease for service connection purposes, it nonetheless may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). In this case, no opinions address whether symptoms related to the Veteran's service-connected disabilities resulted in the development of obesity as an intermediary step in the manifestation of his bilateral pes planus. Here, the Veteran has provided lay statements that a VA doctor informed him that his weight gain was attributable to his now service-connected sleep apnea. See March 2014 Correspondence. On remand, a VA examiner should address any relationship between the Veteran's obesity and his service-connected disabilities. Additionally, the Veteran indicated that he received treatment at West Florida Hospital from March 2, 2007, to March 3, 2007. This provider subsequently informed VA that there were no records for these dates of treatment for the Veteran and, thus, VA closed the record request. See June 2020 Report of General Information. However, it does not appear that the Veteran was notified of a discrepancy in the dates of treatment he provided. As such, on remand, VA should notify the Veteran that West Florida Hospital indicated there were no records for the dates of treatment he provided. Finally, a January 2020 VA treatment record indicates that the Veteran was referred to a foot and ankle non-VA provider, Denis Foot and Ankle Specialists Inc., for treatment in March 2020. As any treatment records from this provider may be relevant to the Veteran's claim, on remand the RO should attempt to obtain any outstanding treatment records from this source. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated September 2021. 2. Notify the Veteran that although he reported treatment from West Florida Hospital from March 2, 2007, to March 3, 2007, the provider informed VA that there were no records for these dates of treatment. Notify the Veteran that he can submit copies of these medical treatment records to VA or provide, on the necessary release forms, alternate treatment dates for his treatment with West Florida Hospital if he would like any treatment records from this provider considered with his claim. 3. Provide the Veteran with another opportunity to identify and/or submit any outstanding private treatment records related to his claims. The evidence indicates that he was referred by VA to a non-VA provider, Denis Foot and Ankle Specialists Inc, for treatment. After securing the necessary releases, attempt to obtain and associate the identified records with the claims file. 4. Then obtain an addendum medical opinion from an appropriate medical profession to address the Veteran's claim for service connection for bilateral pes planus. The claims file, to include a copy of this Remand, should be made available to and be thoroughly reviewed by the VA examiner. The VA examiner is asked to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral pes planus had its onset in active service, or is otherwise related to active service, to include wear and tear from prolonged standing and walking in steel-toed boots in service? (b) If the examiner finds that the Veteran's bilateral pes planus is at least as likely as not (50 percent probability or greater) caused by a factor and/or factors unrelated to the Veteran's active service, such should be explained with detail. In providing the above opinions, the VA examiner must address and discuss how it relates to the Veteran's claim: (1) the Veteran's statement explaining that although he did not report problems with his feet in service, he experienced in-service foot pain and self-treated with over-the-counter Motrin; AND (2) the Veteran's statements that in-service wear and tear, including from wearing steel-toed boots, weakened his arches and overtime damaged/strained the ligament that supports the foot arches. See April 2019 Correspondence. The VA examiner should also consider: (1) the October 2010 VA treatment record reflecting the Veteran's reports of foot pain and that he has had some problems in the past; (2) the November 2010 private treatment record reflecting that the Veteran was assessed with mild pes planus with a slight collapsing of the arch and that he reported an onset of painful arches approximately a year prior; and (3) the VA treatment record assessing the Veteran with bilateral dysfunction of the posterior tibial tendon of the feet. See November 2019 VA treatment record. (c) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's service-connected disabilities caused or aggravated the Veteran's obesity. (d) If so, (1) is the Veteran's obesity a substantial factor in causing or aggravating his bilateral pes planus; and (2) would the Veteran's bilateral pes planus not have occurred or worsened but for the obesity caused by his service-connected disabilities? In providing the above opinions, the VA examiner should consider the Veteran's statements that his doctor informed him that his weight gain was attributed to his pre-diagnosed sleep apnea. The examiner should comment on all questions above and set forth a complete rationale for all opinions, to include citations to medical literature, if feasible. A detailed discussion of the relevant facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide the required opinion, he or she should explain why. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.