Citation Nr: 21074775 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-32 020 DATE: December 16, 2021 REMANDED The claim of entitlement to service connection for a bilateral foot disorder is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Army from January 1982 to January 1985. The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge (VLJ) in December 2018. A transcript of the hearing is associated with the claims file. In June 2021, the Board remanded the claim for additional development. The claim of entitlement to service connection for a bilateral foot disorder is remanded. The Board finds that a remand is required to obtain an addendum medical opinion. On the Veteran's December 1981 enlistment examination, his feet were found to be clinically abnormal. It appears that the foot abnormality was pes planus, asymptomatic, but it's not entirely clear from review of the examination report. The Board is referencing a handwritten cursive notation that begins with what appears to be two letters likely "pp." The notation is clearer on the subsequent page under the heading "74. SUMMARY OF DEFECTS AND DIAGNOSES." The August 2021 VA examiner addressed whether there was clear and unmistakable evidence that the Veteran's foot disorder preexisted service. Contrary to the service treatment records, the examiner stated that no prior history of a foot condition was noted on the December 1981 enlistment examination in direct contradiction to the evidence of record. The examiner concluded that the Veteran's currently diagnosed foot disorder was not incurred in or caused by service. The Board finds that the VA medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Specifically, the VA examiner relied on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based on inaccurate factual basis not probative). The Board finds a remand is required to determine whether the Veteran's bilateral foot disorder preexisted service, to include a statement regarding the foot abnormality noted on the Veteran's December 1981 enlistment examination. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § § § 3.159 (e). 2. Then, the AOJ should obtain an addendum medical opinion from the examiner who conducted the Veteran's August 2021 VA examination. If this examiner is no longer available, then the claims file must be returned to a physician of similar expertise. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner must address the following: (a) The examiner must identify all foot disorders noted on the Veteran's December 1981 enlistment examination. (b) With respect to each foot disorder noted on the December 1981 enlistment examination, the examiner should state an opinion as to whether it is at least as likely as not (50 percent or greater degree of probability) that the foot disorder permanently increased in severity during the Veteran's active service. (c) With respect to each foot disorder not noted on the December 1981 enlistment examination, the examiner should state an opinion as to whether it clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran's entrance onto active duty. (d) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether there is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) evidence that the preexisting disorder did not permanently increase in severity as a result of military service. (e) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran's entrance onto active duty, then the examiner should state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the disorder is etiologically related to the Veteran's military service. In so opining, the examiner must consider and discuss the December 1981 enlistment examination showing that his feet were clinically abnormal, as well as the Veteran's lay statements that his pes planus increased in severity during service and continued since service. (Continued on the next page) The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, she or she should explain why. If an opinion cannot be provided without resorting to mere speculation, she or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed 3. Then, the AOJ should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. McKinley, 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.