Citation Nr: 21066573 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-51 104 DATE: November 1, 2021 REMANDED Entitlement to service connection for bilateral foot disability, to include bilateral pes planus and bilateral calcaneal spurs, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to July 1981. The matter arises from a March 2015 rating decision. The Veteran testified at a June 2021 Board of Veterans' Appeals (Board) Hearing before the undersigned Veterans' Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to service connection for bilateral feet disability, to include bilateral pes planus and bilateral calcaneal spurs, is remanded. A negative VA etiology opinion was obtained in February 2020. See February 2015 VA Foot Conditions Disability Benefits Questionnaire. However, the stated rationale shows that the examiner based this conclusion improperly on the Veteran's records being silent for any bilateral feet pain since service. The examiner failed to consider the Veteran's lay statements that he experienced such pain from service to the present. See also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, no foot disability was noted at the Veteran's entrance examination. Thus, the Board would not consider any foot disability "noted" in the context of the presumption of soundness. However, at the February 2015 VA examination, the Veteran reported that he has had flat feet for many years preceding the military service. In cases such as this, where the presumption of soundness has initially attached, the burden shifts to the Secretary to show by clear and unmistakable evidence that: "(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service." Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. Additionally, the Veteran testified that during service, his feet would bleed after marching for miles. Given such, the examiner should address the Veteran's lay statements. As such, the Board finds that new opinions addressing the foregoing concerns must be obtained. The matters are REMANDED for the following action: 1. Obtain an etiology opinion to determine the nature and etiology of the Veteran's bilateral foot disability, to include bilateral pes planus and bilateral calcaneal spurs. Whether the Veteran should undergo a new examination for the opinion is up to the discretion of the examiner. The claims file must be made available to the examiner for review of the case. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. All tests and studies deemed necessary should be conducted. After reviewing the claims folder, the examiner is specifically instructed to answer the following, FOR EACH AND EVERY CURRENT FOOT DISABILITY: a) Did the Veteran's disability clearly and unmistakably exist prior to the Veteran's active service? (b) If the Veteran's disability is found to have clearly and unmistakably existed prior to active service, is it also clear and unmistakable that such disability was NOT aggravated (permanently worsened beyond its natural progress) by active service? (c) If the Veteran's disability did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that the Veteran's disability had its onset during service (temporal)? (d) If the Veteran's disability did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that the Veteran's disability is otherwise related to such service? The examiner is instructed to address and consider the Veteran's statements even if there is no contemporaneous medical record. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a veteran's report of in-service injury and instead relied on the absence of evidence in a veteran's service medical records to provide a negative opinion). Specifically, the examiner must consider: (i) the Veteran has asserted that once he joined the military, he did a lot of marching and running in combat boots and when he would take off his boots, his feet would be bleeding, and ever since then, he has been having problems with his feet. He did not report the pain during military service, however. But the pain has existed ever since he left the military. See Board Hearing transcript. The examiner is reminded that The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed must "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) The Board notes that the examiner may have a further obligation to research the medical literature. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. 2. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. (CONTINUED ON THE NEXT PAGE) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.