Citation Nr: 21063471 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 19-23 300 DATE: October 14, 2021 REMANDED Entitlement to service connection for bilateral pes planus (claimed as fallen arches) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1971 to January 1973, including service in Korea from January 1972 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board denied entitlement to service connection for bilateral pes planus. The Veteran appealed the Board's October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted the parties' Joint Motion for Partial Remand (JMPR) remanding the Veteran's service connection claim for bilateral pes planus to the Board. Specifically, the parties agreed that the Board erred when it relied on a medical opinion that failed to adequately address whether the Veteran's pes planus was aggravated by military service. This matter was previously before the Board in January 2021 and was remanded for additional development. The Board further notes that in the October 2019 Board decision, the issues of entitlement to service connection for an acquired psychiatric disorder, sleep apnea, and hypertension were remanded to the agency of original jurisdiction (AOJ) for further development, to include obtaining VA examinations and attempting to verify an in-service stressor. However, the requested development has not been completed for any of these issues. Therefore, the Board refers the aforementioned issues to the AOJ for appropriate action. Entitlement to service connection for bilateral pes planus (claimed as fallen arches) is remanded. Veteran contends his pes planus was aggravated by active service, manifested by increased bilateral foot pain, due to wearing military issued boots daily and being on his feet for excessive periods of time. See, e.g., VA examinations dated May 2021 and July 2021; August 2019, Third party correspondence; August 2014, VA Form 21-4138. In a September 2021 correspondence, the Veteran's representative asserted the July 2021 VA examiner's negative nexus opinion for aggravation is inadequate because it does not provide rationale, only facts and conclusions, did not discuss the Veteran's lay statements of worsening during service and the need for subsequent surgical treatment. The Board finds a new VA examination and etiology opinion for bilateral pes planus is necessary. The July 2021 VA examiner found the Veteran's preexisting bilateral pes planus was not aggravated by military service because moderate pes planus was noted on by the clinician on his 1970 entrance examination and on examination, the Veteran has current moderate decreased longitudinal arch height of both feet on weight-bearing. The Board finds the aggravation opinion is inadequate because the examiner failed to address the Veteran's lay statements of worsening bilateral foot pain during military service, whether wearing military-issued boots every day and being on his feet an excessive amount of time o during active service permanently worsened the Veteran's pes planus, and whether the 2001 right foot surgery was a result of pes planus aggravated by military service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that when an examiner failed to address the veteran's lay statements and reports of symptoms, VA must get a new examination); see also, Falzone v. Brown, 8 Vet. App. 398, 403 (2005) (holding that a lay person is competent to testify to pain and visible flatness of his feet, and that the veteran's complaints of foot pain in service signaled aggravation of his pre-existing foot disorder). Further, the Board notes that the July 2021 VA examination is internally inconsistent as it notes that the Veteran has flare-ups of increased pain with standing in line or walking, but later indicates the Veteran has no pain with use of his feet. In light of the foregoing, the Board finds that to adjudicate this appeal a new VA examination is necessary to determine whether the Veteran's current bilateral pes planus was aggravated by active service. The matter is REMANDED for the following action: 1. Notify the Veteran in light of his competent report of a worsening of his pre-service bilateral pes planus that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any in-service and post-service complaint or treatment for bilateral pes planus. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his bilateral pes planus. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a.) Whether it is at least as likely as not that the Veteran's current bilateral pes planus was aggravated (worsened beyond its natural progression) during or as a consequence of active service, to include as a result of wearing military-issued combat boots daily during service and being on his feet for excessive periods of time. See August 2014, VA Form 21-4138. In answering (a), the examiner must also consider and address the Veteran's competent lay statements that he experienced increased pain in his feet during service that continued after discharge from service and had to have surgery on his right foot in 2001 as a result of pes planus. (b.) If aggravation is found, please state the baseline in severity prior to aggravation. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. In responding to the above inquiries, the examiner must acknowledge and discuss the Veteran's competent lay report of a worsening of his pes planus during service. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.