Citation Nr: 21077382 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-14 974 DATE: December 29, 2021 REMANDED Entitlement to service connection for pes planus is remanded. Entitlement to service connection for a foot disability, other than pes planus is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from July 1996 to July 2000, and in the United States Coast Guard from May 22, 2001 to July 30, 2001 and from December 2001 to November 2005. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) March 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In August 2021 the Board most recently remanded the case to the AOJ for additional development. The Board notes that at the time of the August 2021 remand the Veteran had two other matters on appeal. Simultaneous to remanding the Veteran's claim for service connection for bilateral foot and heel disabilities as well as his claim for service connection for pseudofolliculitis barbae (PFB), the Board denied the Veteran's claim for entitlement to service connection for bilateral hearing loss. The Veteran's claim for service connection for hearing loss is final, and therefore will not be addressed in the present decision. Furthermore, in the time since the August 2021 remand the AOJ has granted the Veteran's claim for service connection for PFB in an October 2021 rating decision. As that constitutes a full grant of the benefit sought the matter is no longer on appeal before the Board. 1. Entitlement to service connection for pes planus. While the Board regrets further delay, unfortunately further development of this issue is required. As part of the Veteran's claim of service connection for a foot disability, the evidence shows that he has a diagnosis of bilateral pes planus. Under 38 C.F.R. § 3.304(b), a veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defect, infirmities, and disorders noted an entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as recorded in examination reports are to be considered as noted. Id. Review of the Veteran's service medical records (SMRs) shows that his July 1995 entrance examination identified a diagnosis of mild pes planus, asymptomatic. Thus, the disability of pes planus was noted on examination at the time of entrance into service, and the presumption of soundness does not attach with respect to this disability. Given that it is a pre-existing disability, service connection may be awarded on the basis of aggravation in service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (CUE) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Id. § 3.306(b). In other words, if it is determined that the pes planus increased in severity during service, the presumption of aggravation is triggered and CUE is required to rebut it. With the foregoing in mind, the Board has reviewed the most recent October 2021 VA examination and observes that the examiner employed the CUE legal standard to determine whether there was an increase in severity of pes planus during service. This is legally incorrect, and such an opinion should proceed on an "at least as likely as not basis." Only if it is determined that there was an increase in severity of pes planus during service, should the examiner consider whether there is CUE that the increase in severity was due to the natural progress of the disease. Accordingly, remand is required for an addendum opinion. 2. Entitlement to service connection for a foot disability, other than pes planus is remanded. The Veteran claims that his bilateral foot disabilities (excluding pes planus) are caused by, incurred in, or otherwise due to his active-duty military service. The Board notes that the Veteran's post-service medical treatment records show diagnoses of bilateral achilles tendonitis, plantar fasciitis, heel spurs, and achilles calcification, with the last two confirmed by medical imaging in September 2014. At his October 2021 VA examination, the Veteran was diagnosed with bilateral pes planus (discussed above) and bilateral plantar fasciitis. There was no mention of the Veteran's other conditions of achilles tendonitis, heel spurs, and/or achilles calcification. The examiner did not explain whether or not those conditions had resolved, or why they were otherwise not addressed. As the VA examiner failed to address the omission of previously diagnosed foot conditions, an addendum medical opinion is necessary to allow the Veteran to develop his claim. The matters are REMANDED for the following actions: 1. The AOJ shall obtain an addendum medical opinion, regarding the etiology of the Veteran's pes planus. The examiner shall be provided with a copy of the Veteran's claims file, as well as a copy of these remand directives. The examiner is asked to answer the following questions: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's pes planus increased in severity (aggravated) during service? For the purpose of this medical opinion, the examiner should presume that the Veteran's pes planus pre-existed active service. Moreover, the examiner should consider the relevant medical and lay evidence in forming this opinion. An increase in severity of the pre-existing condition is distinguishable from the mere recurrence of manifestations of the pre-service condition. Temporary flare-ups, without more, do not satisfy the level of proof required of a non-combat veteran to establish an increase in disability. (b) If it is determined that there was an increase in severity of pes planus during service, is there clear and unmistakable evidence that this increase was due to the natural progress of the disease? 2. The AOJ shall obtain an addendum medical opinion, from a qualified medical examiner, regarding the etiology of the Veteran's foot disabilities, other than pes planus. The examiner shall be provided with a copy of the Veteran's claims file, as well as a copy of these remand directives. The examiner must provide the following: (a.) The examiner must note any diagnosable foot disabilities, other than pes planus. The examiner must address the Veteran's medical history, noting prior diagnoses of plantar fasciitis, achilles tendonitis, heel spurs, and/or achilles calcification. If one or more of the conditions have resolved, the examiner must say so; and, (b.) For each diagnosable foot disability, other than pes planus, the examiner must state whether it is as least as likely as not (approximately 50 percent chance or greater) that the foot disabilities were incurred in, caused by, or otherwise due to the Veteran's active-duty military service. In providing the required opinions listed above, the examiner must consider the Veteran's descriptions of his in-service symptoms as well as his post-service symptoms. Full, detailed rationales must be provided for all opinions rendered. If the examiner cannot provide the necessary opinions without an in-person examination of the Veteran, the AOJ shall schedule such an examination for a time and place convenient to the Veteran. If the examiner cannot provide the necessary opinions without resorting to mere speculation, they must explain why that is the case. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.