Citation Nr: 21007046 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-33 054 DATE: February 8, 2021 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1983 to September 1988. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 Regional Office (RO) rating decision. In March 2019, the Board denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a May 2020 Order, the Court vacated the Board’s March 2019 decision and remanded the matter pursuant to an April 2020 Joint Motion for Partial Remand (JMPR) finding that the Board erred by relying on the March 2014 medical opinion, to the extent that the opinion failed to provide adequate rationale for its determination that the Veteran’s bilateral pes planus was not aggravated by service. In the October 2020 remand, the Board instructed the examiner to review the entire claims file, remand, and April 2020 JMPR to provide an addendum medical opinion supported by an adequate rationale in order to address whether the Veteran’s bilateral pes planus: is congenital in nature and if so whether it is a congenital disease or congenital defect; is it as likely as not that it was aggravated (i.e. increased in severity) during active service; if there was an increase in severity, is it undebatable that the increase in severity was due to the natural progression of the disability. In a December 2020 addendum opinion, the examiner found that the Veteran’s bilateral pes planus is a “congenital disease” on the basis that it is a “pre-existing disease.” The examiner reasoned, “the condition is a congenital disease, with associated symptoms are capable of improving and/or worsening in severity.” The examiner further determined there was no aggravation and cited his rationale “3/17/2014 examination demonstrates bilateral foot pain which does not necessitate assist devices or prior procedure, this falls within the projected natural history of the condition and does not represent aggravation (beyond natural progression).” In this case, although his foot condition was noted on his November 1982 entrance examination, he was not diagnosed with flatfeet until December 1984, when it was noted that the Veteran was reporting pain for 2 weeks when walking on the ball of his left foot, without any notable trauma. Fallen arches were noted on the Veteran’s June 1988 separation examination. The Board reflects that the examiner did not discuss any of this evidence in an opinion where he was requested to address whether an aggravation occurred during military service. Thus, the examiner’s opinion is inadequate and does not substantially comply with the Board’s previous remand directives. Accordingly, a remand is necessary in order to obtain another VA examination and medical opinion that adequately addresses facts of this case and the previous remand directives issued by the Board in October 2020. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final matter, the Board reflects that the Court indicated that a number of correspondences were sent to an incorrect address for the Veteran. On remand, the Agency of Original Jurisdiction (AOJ) should update the Veteran’s contact information as appropriate and send the Veteran a letter indicating that he should submit evidence to substantiate his claim. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative, as appropriate, to obtain updated contact information, and then send correspondence informing him of his right to submit additional evidence to substantiate his claim. 2. Schedule the Veteran for a VA physical examination with a podiatrist who has not previously participated in this case to determine the current nature and etiology the Veteran’s bilateral pes planus. Review the claims file, specifically the Veteran’s service treatment records (STRs), including this Remand, and JMPR must be made available to and be reviewed by the examiner in conjunction with the examination. All required testing should be obtained, as appropriate. After review of the claims file and examination of the Veteran, the examiner should first provide discussion regarding the efficacy of the previous March 2014 and December 2020’s findings regarding whether the Veteran’s bilateral pes planus is congenital or not, and if so, that such is a congenital disease rather than a congenital defect. Regardless of the above, unless the examiner finds that the Veteran’s bilateral pes planus is a congenital defect (i.e., not capable of increase or decrease in severity), the examiner should indicate whether the Veteran’s noted pre-existing bilateral pes planus at least as likely as not (i.e., 50 percent or greater probability) underwent an increase in severity during military service. In so addressing this, the examiner should discuss the Veteran’s service treatment records in detail, including the November 1982 entrance examination, the December 1984 treatment records for pain in his feet, and the notation of fallen arches in his June 1988 separation examination. The examiner should additionally address any and all lay statements from the Veteran regarding the nature and course of his symptoms during military service. Next, if an increase is noted during service, the examiner should then opine whether the evidence of record demonstrates to a clear and unmistakable degree that such increase was not a permanent aggravation of the Veteran’s bilateral pes planus disorder beyond the normal progression of that disease. The examiner should describe the baseline severity and natural progression of a pre-existing bilateral pes planus disability picture as it compares the Veteran’s particular symptomology during service. The Board reiterates that the examiner’s focus in this case is whether aggravation occurred during military service. The examiner should consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.