Citation Nr: 21070831 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-19 501 DATE: November 26, 2021 REMANDED Entitlement to service connection for bilateral pes planus, to include bilateral foot pain and hallux vagus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1975 until his honorable discharge in December 1975, and in the United States Marine Corps from December 1976 until his honorable discharge in April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Regional Office of the Department of Veterans Affairs (VA). In April 2021, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain a new VA examination as to the "nature of any bilateral pes planus and foot disability independent of the service-connected toe disability." The examiner was instructed to provide an opinion on whether a foot disability, not including the service-connected big toe disability, was incurred during service or the result of an in-service injury, illness, disease, or event. The examiner was further instructed to determine if the service-connected big toe disability caused or aggravated a foot disability, to include pes planus and foot pain. Unfortunately, the Board regrets further delay, but additional development is necessary before a decision may be rendered on this issue on appeal as there has not been substantial compliance with the Board's previous remand directives regarding the issue of the nature and etiology of the Veteran's bilateral pes planus. For the reasons set forth below, additional development is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral pes planus, to include bilateral foot pain and hallux vagus. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, the Board may not make a medical determination without relying on independent medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The April 2021 Board remand instructed the regional office to obtain a VA examination addressing both direct and secondary service connection for any current foot disability diagnoses the Veteran had during the period on appeal, to include pes planus and bilateral foot pain. The Regional Office failed to obtain an adequate examination. The post remand, September 2021 VA examination addressed the direct and secondary service connection theories but failed to provide an adequate rationale. After finding that his foot disability was not at least as likely as not aggravated beyond its natural progression by his service-connected big toe disability, the examiner stated as follows: "In response, after review of the medical records provided, it is less likely than not that the claimants pes planus is aggravated beyond its natural progression." A progress note from March 2013 was then provided which stated that flat foot was noted but did not provide an explanation as to why the big toe disability had not aggravated the disability. The examiner again provided a negative aggravation opinion that failed to include an adequate rationale that focused on the ingrown toenails that were removed from the big toe, but it again failed to explain how his foot pain, pes planus, or hallux vagus were not aggravated. Notably, the Court of Appeals for Veterans Claims (Court) has indicated that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b). El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court also has indicated that an opinion that there is "no etiological relationship" may be insufficient to address the question of aggravation. Allen, 7 Vet. App. at 449 ("[I]t is a big stretch of the English language to construe the phrase 'no etiological relationship between the veteran's service-connected right knee arthritis and the subsequent onset of left knee and bilateral hip arthritis' as encompassing aggravation, especially considering the use of the word 'onset.'"). Thus, remand for an additional medical opinion is required. The Court has also found that the meaning of the term "aggravation" in cases where service connection is sought on the basis that a pre-service disability was aggravated as a result of service is different than the definition used in cases where a Veteran with an already service-connected disability claims that such disability causes or aggravates a secondary disability. See Ward v. Wilkie, 31 Vet. App. 233, 237 (2019). The Court noted that the two analyses use different underlying law and regulations, 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 for secondary service connection and 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a) for service connection based on in service aggravation of a pre-existing condition. Id. The relevant regulation here is 38 C.F.R. § 3.310(b) which was updated in 2006 and states in part, "Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected." 38 C.F.R. § 3.310(b). (emphasis added). The Regional Office must obtain an addendum opinion explaining whether the Veteran's service-connected big toe disability has caused "any increase in severity" to his bilateral pes planus, hallux vagus, or foot pain that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's bilateral foot disability, not to include his service-connected big toe disability, from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent probability or greater) that the bilateral foot disability was aggravated by his service-connected big toe disability. The examiner must specifically address the following: (a.) Whether the Veteran's big toe disability aggravated or caused any increase in severity to his bilateral flat foot (pes planus) disability, hallux vagus, or foot pain. (Continued on the next page) 2. After, readjudicate the Veteran's claim. If the claim remains denied, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue to the Board for further appellate consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.