Citation Nr: 21007571 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-54 035 DATE: February 10, 2021 REMANDED The claim for entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Air Force from July 1954 to December 1957. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for bilateral pes planus. This matter was previously remanded in September 2018 and July 2020. The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in May 2018. In October 2020, the RO issued a Supplemental Statement of the Case (SSOC). This matter is now properly before the Board. Entitlement to service connection for bilateral pes planus. The Veteran contends that he is entitled to service connection for his bilateral pes planus as he claims his condition was aggravated by his military service. In May 2018, the Veteran provided testimony at a videoconference hearing before the undersigned VLJ. The Veteran testified that his claim for bilateral pes planus was denied in 1968, (the record shows it was denied September 1969), and afterwards he sought out private treatment for his bilateral pes planus. The Veteran testified that he sought out private treatment from different foot doctors and that he bought shoes that were recommended to him by the foot doctor to provide arch support. In October 2019, the Veteran was afforded a VA examination. The October 2019 VA examiner indicated that the Veteran had clear and unmistakable evidence of the preexisting bilateral pes planus and the Veteran continued to suffer from the disorder during service. The examiner noted that the progression is not beyond the normal progression for this disorder and that there was no evidence of permanent aggravation beyond normal progression. The examiner noted that there was no change in the Veteran’s bilateral pes planus on his entrance exam and on his separation exam. The examiner noted that there was evidence within the medical record that the Veteran had unspecified foot trouble in 1957. The examiner did not provide any rationale as to the possibility of the foot trouble being related to aggravation of the Veteran’s preexisting bilateral pes planus. In October 2020, the Veteran was afforded another VA examination. The examiner opined that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner provided the rationale for the opinion was based on the Veteran’s entrance exam from July 1954 and the Veteran’s separation exam from November 1957. The examiner found there was no change to the pes planus condition as a result of military service or events related to military service. The examiner noted that there was clear and unmistakable evidence of the preexisting bilateral pes planus but there was no evidence to indicate the Veteran continued to suffer from the disorder during service. The Board finds that the examiner relied on the absence of records to conclude that the Veteran’s bilateral pes planus is not service connected. The examiner also failed to discuss the medical records indicating the unspecified foot trouble in 1957. The examiner did not consider the Veteran’s lay statements or testimony regarding on going pain while in service. The Board finds that the October 2020 examiner failed to fully consider the Veteran’s claims file in its entirety. In August 2016, the Veteran provided a lay statement regarding his bilateral pes planus. The Veteran stated that he had flat feet when he joined the United States Air Force. The Veteran’s lay statement indicated that in 1954 after marching for three months, his ankles and feet were hurting so bad he could hardly walk. The Veteran further stated that he has not been able to wear boots or high-top shoes since he was discharged. The Veteran’s August 2016 lay statement indicated that he had ongoing symptoms since 1954 while in service. The October 2020 examiner did mention this in his examination report but did not provide any rationale as to aggravation of the Veteran’s pre-existing condition. The October 2020 examiner failed to discuss the impact of the Veteran’s incremental increase in disability as a result of marching in combat boots and other high impact activities. Furthermore, the Board finds that the examiner failed to consider the Veteran’s testimony from the May 2018 videoconference hearing. The Board finds that the October 2020 VA examination is inadequate. A VA medical opinion is inadequate if it fails to consider the Veteran’s reports and relies on the absence of supporting service treatment records. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds that the Veteran’s testimony in May 2018 provides sufficient information that the Veteran sought out private treatment for his bilateral pes planus. However, there is no indication within the record that such private treatment records were obtained by the RO. The RO has a duty to assist the Veteran in obtaining outstanding private treatment records. The VA’s duty to assist requires VA to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claims for VA benefits. A remand is required in this case to obtain outstanding private treatment records. It is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C. §§ 5107(a), 5103A (2012); 38 C.F.R. § 3.159(c) (2019). The Board also finds that the Veteran’s service treatment records may have been lost in a fire. The Veteran testified to this, and this is further substantiated by the Veteran’s claims file. The Board acknowledges that there are service treatment records that were lost to a fire and that the Veteran's service department records are "fire-related”. In instances where a Veteran's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board finds that the Veteran has outstanding private treatment records and the VA has an obligation to assist the Veteran in obtaining such records. The Board further finds that the October 2020 VA exam was inadequate because it failed to consider the Veteran’s reports and relied on an absence of supporting service treatment records. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the Board provided specific remand instructions in which the examiner did not comply. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to obtain outstanding private treatment records, a new adequate VA examination that considers the Veteran’s reports and does not rely on the absence of supporting service treatment records, and to ensure compliance with the remand instructions. The matters are REMANDED for the following action: 1. Provide the Veteran the opportunity to submit, or authorize VA to obtain, any additional medical treatment records either private or VA, relevant to the Veteran’s bilateral pes planus. After obtaining all available treatment records and associating them with the claims file, the electronic claims file should be made available to an appropriate clinician. If the examiner determines that a physical examination is necessary to provide the requested opinions such should be scheduled. The examiner should consider the entire claims file, including a copy of all remands within the claims file and this Remand. The examiner should not rely on the absence of supporting service treatment records when providing an opinion. The Board notes that the Veteran’s pes planus 2nd degree was noted at the time of enlistment; however, it was noted with no symptoms present. The Board also notes that the Veteran’s pes planus has already been found to be clearly and unmistakably pre-existing service. 38 C.F.R. § 3.304(b). This term has been further defined by the Court as meaning that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). 2. The examiner must address the following: (a) Provide an opinion as to whether there is clear and unmistakable evidence demonstrating that any preexisting pes planus condition was not aggravated beyond the natural progression of the condition as a result of active military service. The term “aggravation” in the above context refers to any incremental increase in disability, any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence of the underlying condition, beyond its natural progression, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). In formulating the above opinions, the examiner must consider and discuss all lay statements and assertions provided by the Veteran. Including those statements in the June 1969 examination for his bilateral pes planus where the Veteran indicated pain since service. The examiner must also consider the Veteran’s testimony in the May 2018 hearing and all private treatment records obtained. A complete rationale must be provided for any and all opinions offered. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence or information might allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record, perform any necessary development, and readjudicate the claims on appeal. If the appeal is denied, the AOJ should issue an appropriate Supplemental Statement of the Case (SSOC), afford the Appellant and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.