Citation Nr: 21074510 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-14 145 DATE: December 15, 2021 REMANDED Entitlement to service connection for pes cavus is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for left lower extremity neuropathy is remanded. Entitlement to service connection for right lower extremity neuropathy is remanded. Entitlement to service connection for right leg radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1985 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) from February 2016 and March 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2020 decision , the Board, in pertinent part, denied entitlement to service connection for a left ankle disability, a right ankle disability, bilateral shin splints, a lumbar spine disability, left lower extremity neuropathy, right lower extremity neuropathy, and right leg radiculopathy. The Veteran appealed the December 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Veteran's representative and the VA's General Counsel filed a Joint Motion for Partial Remand. Specifically, in the Joint Motion, the parties requested that the Board's December 2020 decision be vacated insofar as it had denied service connection service connection for a left ankle disability, a right ankle disability, bilateral shin splints, a lumbar spine disability, left lower extremity neuropathy, right lower extremity neuropathy, and right leg radiculopathy. The parties also agreed that the Board had erred in finding that a claim for service connection for pes cavus was not before the Board as part of the Veteran's claim for service connection for right and left ankle disabilities. The Court granted the parties' Joint Motion that same month and the matters identified in the Joint Motion were remanded to the Board for readjudication consistent with the Joint Motion. The Board notes that the December 2020 decision also addressed claims for service connection for bilateral hearing loss, tinnitus, and a right knee disability, which issues were remanded for further development. Upon completion of the requested development, the RO issues a July 2021 rating decision in which it granted service connection for bilateral hearing loss, tinnitus, right knee strain, and right knee instability; disability ratings and effectives dates were also assigned. To date, the Veteran has not disagreed with any aspect of the RO's July 2021 decision. As the RO's awards of service connection for bilateral hearing loss, tinnitus, right knee strain, and right knee instability constitute full awards of the benefit sought on appeal with respect to the claims, the matters have accordingly been resolved. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). 1. Entitlement to service connection for pes cavus. In the August 2021 Joint Motion, it was determined that the Board erred in not adjudicating the issue of entitlement to service connection for pes cavus as such was part and parcel of the claims of service connection for right and left ankle disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board has thus recharacterized entitlement to service connection for pes cavus as a separate claim. Given the Veteran's assertions, the evidence of record, and the actions by the RO below, no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). At this outset, the Board notes the in November 2021, the Veteran's attorney submitted a brief in which it was stated that the Veteran wished to have his case remanded to the Agency of Original Jurisdiction (AOJ) for review of additional evidence, to specifically include a private medical opinion of L.B., a Physician's Assistant, offered in support of the claims. Thus, the case must be remanded for consideration of the newly submitted evidence by the AOJ. Further, regarding whether service connection for pes cavus is warranted, the evidence shows that the Veteran has been diagnosed with pes cavus. Specifically, a January 2016 VA examiner diagnosed the Veteran with such and opined that such was congenital. However, the Veteran's feet were examined and found to be normal during his May 1985 enlistment examination. As such, he is entitled to the presumption of soundness. Crowe v. Brown, 7 Vet. App. 238 (1994). A veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with 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 Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). At this juncture, the Board makes no findings regarding the attorney's arguments or the November 2021 private medical opinion. The Board also makes no additional credibility findings regarding the Veteran's lay statements at this juncture. However, on remand, should the AOJ determine that the November 2021 private medical opinion is insufficient to support an award of service connection for pes cavus, the Veteran should be afforded a VA examination to determine the nature and etiology of his pes cavus. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for bilateral shin splints. 5. Entitlement to service connection for a lumbar spine disability. 6. Entitlement to service connection for left lower extremity neuropathy. 7. Entitlement to service connection for right lower extremity neuropathy. 8. Entitlement to service connection for right leg radiculopathy. As agreed by the parties in the August 2021 Joint Motion, resolution of the claim of service connection for pes cavus may have an impact on the Veteran's claims of entitlement to service connection for bilateral ankle disabilities, bilateral shin splints, a lumbar spine disability, neuropathy of the bilateral lower extremities, and right leg radiculopathy; the remaining claims on appeal therefore must also be remanded as they are inextricably intertwined with the remanded claim of service connection for pes cavus. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The Board also points out that the Veteran's attorney has requested that these claims be remanded for the AOJ to consider the private medical evidence submitted in support of the claims in the first instance. The matters are REMANDED for the following action: 1. Review the private medical evidence from L.B., submitted by the Veteran's attorney in November 2021. Make a preliminary determination of whether such evidence supports an award of service connection for pes cavus. 2. If it is determined that the November 2021 private medical opinion is not adequate to support an award of service connection for pes cavus, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's pes cavus. Access to records in the claims file should be made available to the examiner for review in connection with his or her opinion. Following examination of the Veteran and review of the claims file, the clinician should provide opinions for the following: (a) Did pes cavus clearly and unmistakably exist prior to the Veteran's active service? (b) If pes cavus 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 pes cavus did not clearly and unmistakably exist prior to military service, is it least as likely as not (a 50 percent or greater probability) that current pes cavus had its onset during service, or is otherwise related to such service? In providing the requested opinion and rationale, the examiner should consider the pertinent evidence of record, including the January 2016 VA ankle examination report and opinion, and the November 2021 private medical opinion of L.B., P.A. In providing the requested opinions, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his injury and symptoms align with how the disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 3. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims on appeal. Readjudication of the claims must include specific consideration of the November 2021 private medical opinion. If it is determined that the November 2021 private medical opinion does not support an award of service connection for pes cavus, or any other claimed disability, the AOJ must provide specific reasons for rejection of the evidence that is favorable to the Veteran. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.