Citation Nr: 21071238 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 14-30 439 DATE: November 30, 2021 REMANDED Entitlement to service connection for a foot disorder, to include pes planus, is remanded. REASONS FOR REMAND The Veteran had active service from February 1987 to February 1995. He appealed a May 2012 rating decision by the Agency of Original Jurisdiction (AOJ). This appeal was remanded for additional development in April 2018, August 2020, and June 2021. Unfortunately, another remand is required. Since this appeal was recertified to the Board, new VA treatment records were added to the record. Generally, the Board may not consider additional evidence previously unreviewed by the AOJ; however, the Board is remanding the appeal for further development so a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1305(c). The Board's June 2021 remand instructed the AOJ to obtain an opinion on whether the Veteran's diagnosed pes planus was aggravated by service. The examination instructions expressly referenced multiple instances of treatment identified in the Veteran's service treatment records (STRs), which the clinician was asked to consider and reference. The July 2021 opinion stated that the Veteran's STRs contained one record noting an acute episode of pain in the right foot following ruck marching, and that there was no evidence of any injury to either foot of such severity that would cause the Veteran's pes planus to worsen beyond natural progression. However, the clinician's opinion is inconsistent with the Veteran's STRs. As the Board observed in its prior remand, the Veteran was treated for fallen arches in November 1987 and for achilles tendonitis in January 1988. See March 6, 1995 STRs, pp. 52-53. The STRs also show the Veteran received treatment for pain in his feet in April 1991 and was diagnosed with a left foot contusion in February 1993. Id. at pp. 5-6, and 10. Thus, the clinician's rationale is based on an inaccurate factual premise, and remand is required. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran's representative asserted that the July 2021 opinion was inadequate and challenged the competency of the clinician. See November 2021 Appellate Brief, pp. 3-4; see also Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). However, as the Board has found the opinion inadequate and is seeking a new opinion, the challenge is moot. Lastly, the Board notes that the October 2019 foot examination report indicates that the examiner reviewed the Computerized Patient Record System (CPRS). However, the Board does not have access to CPRS. Thus, the AOJ should obtain any CPRS records reviewed by the October 2019 examiner that are not accessible to the Board. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding relevant records viewable in CPRS as referenced in the October 2019 examination report. 2. Once any outstanding records have been received, refer the claims file to an appropriately qualified clinician, who has not previously reviewed the Veteran's claims file, for preparation of a medical opinion. The entire claims file, including a copy of this remand, must be made available to the reviewing clinician, and the clinician should confirm that such records were reviewed. No additional examination of the Veteran is necessary unless the reviewing clinician determines otherwise. The reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not that the Veteran's pes planus, noted upon entry to service, increased in severity during active service? In forming an opinion, consider and reference the Veteran's STRs, which show treatment for fallen arches in November 1987, left foot muscle strain and achilles tendonitis in January 1988, painful feet in April 1991, and left foot contusion in February 1993. See March 6, 1995 STRs, pp. 5-6, 10, 52-53. (b.) If so, was the increase in severity clearly and unmistakably (i.e., undebatable) due to the natural progress of the disease? Note: in addressing this question, the clinician is required to reference affirmative evidence demonstrating that there was no aggravation. This burden cannot be met by finding that the record contains insufficient evidence of aggravation. In rendering any opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. The reviewing clinician is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.