Citation Nr: 21069429
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 18-41 157
DATE: November 18, 2021

REMANDED

Entitlement to service connection for a bilateral foot disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from September 1960 to September 1963. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In October 2020, the Board issued a decision denying service connection for a bilateral foot condition. The Veteran appealed the matter to the Court of Appeals for Veterans Claims (Court), which vacated the October 2020 Board decision, pursuant to a July 2021 Joint Motion for Partial Remand (JMPR). The Court remanded the matter for action consistent with the terms of the JMPR.

1. Entitlement to service connection for a bilateral foot disability is remanded.

In the July 2021 JMPR, the parties agreed that the Board erred by not ensuring that the duty to assist was satisfied. Specifically, the parties found that the February 2009 VA examination on which the Board relied was inadequate. 

In the October 2020 denial, the Board found that the February 2009 VA examination was probative "because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data." However, service treatment records were not associated with the claims file until October 2015, after the VA examination the Board cited. Accordingly, the parties concluded that the February 2009 VA examination was inadequate, as it was not based on the Veteran's full medical history. The Board notes that the Veteran's service treatment records show that he was noted as having pes planus on enlistment and was treated for foot complaints during service. Therefore, remand is warranted for a new medical opinion which addresses the Veteran's service treatment records. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order).

The matters are REMANDED for the following action:

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Schedule the Veteran for a VA examination to determine the nature and etiology of his bilateral foot disability. The examiner should provide an opinion as to whether it is at least as likely as not that the bilateral pes planus noted on the Veteran's September 1960 enlistment examination was aggravated during his active service. In so opining the examiner should address the in-service complaints and treatment of the Veteran's feet. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.

 

 

D. SMART

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Watkins, 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.