Citation Nr: 21011295 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-27 374A DATE: March 1, 2021 REMANDED Entitlement to service connection for bilateral pes planus, foot condition, is remanded. REASONS FOR REMAND The Veteran served in active duty from June 1969 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an April 2017 Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claim file. In a March 2020 decision, the Board remanded this matter for a new examination regarding the nature and etiology of the Veteran’s claimed bilateral pes planus. More specifically, the examiner was instructed to accept as true for the purposes of the examination the Veteran’s lay statements that he was treated multiple times in service for flat feet and bilateral foot pain and that he has experienced symptoms since service. The examiner’s attention was also invited to the June 1969 enlistment examination notating asymptomatic pes planus and the August 1969 service treatment record indicating that the Veteran was treated in service for flat feet and foot pain more than once. The Veteran contends that his bilateral foot condition was aggravated by service. In characterizing the Veteran’s bilateral foot condition, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). As medical evidence of record indicates that the Veteran has multiple foot diagnoses, the issue of entitlement to service connection has been expanded as noted above, consistent with Clemons. See February 2, 2019 VA Treatment Record (noting X-ray indicates right foot degenerative joint disease (DJD)); see id (noting a diagnosis of gout with flareups); October 27, 2016 VA examination (documenting a diagnosis of bilateral foot osteoarthritis). The Veteran was afforded a new VA examination in November 2019. However, the examiner did not note clearly address the evidence of treatment in service. The examiner determined that there was insufficient evidence of treatment or diagnosis in service. The examiner stated that he could not opine whether there was clear and unmistakable evidence of pre-existing disability due to insufficient objective information. The evidence, however, shows that October 2016 VA examiner determined that the Veteran’s foot condition clearly and unmistakably existed prior to service. The 2020 examiner did not address this conflict of medical opinions. Finally, the 2020 examiner opined it was less likely than not that the pes planus is related to service. See November 2020 VA opinion, pg. 2, 4. The Board also notes that the examiner did not address other diagnoses of record, such as osteoarthritis, gout and DJD. See November 2020 Disability Benefits Questionnaire (DBQ), pg. 2-3, Section I – Diagnosis, arthritic conditions, inflammatory conditions; see also id., pg. 8-9, Section X – Foot Injuries and Other Conditions, Question No. 10A. Thus, the November 2020 examination does not provide sufficient information to judge the probative value of the opinion and is not in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers the right to compliance with remand orders); see also, Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide an examination or opinion, it must ensure that it is adequate). Thus, remand is required to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the following: (a) Identify all past and present foot disorders diagnosed, to include DJD, osteoarthritis, gout or pes planus. (b) For each foot disorder diagnosed, the examiner should opine whether it: clearly and unmistakably existed prior to service, and if so, whether it was clearly and unmistakably NOT aggravated by service beyond the normal progression of the disease. (c) For each foot disorder which did not clearly and unmistakably exist prior to service, the examiner should determine whether it is at least as likely as not (50 percent or greater possibility) that the disorder is related to military service. For purposes of the examination, the examiner should accept the Veteran’s lay statements as true that he was treated multiple times in service for flat feet, for feet pain and that he has experienced symptoms since service. The examiner’s attention is invited to the June 1969 enlistment examination notating asymptomatic pes planus and the August 1969 service treatment record indicating that the Veteran was treated in service for flat feet and feet pain more than once. The examiner’s attention is drawn to the October 2016 VA examination which determined that the Veteran’s pes planus clearly and unmistakably predated service. The examiner’s attention is drawn to VA treatment records which note other foot diagnoses of osteoarthritis, DJD and gout. See February 2, 2019 VA Treatment Record (noting X-ray indicates right foot degenerative joint disease (DJD)); see id (noting diagnosis of gout with flareups); October 27, 2016 VA examination (documenting diagnosis of bilateral foot osteoarthritis). In rendering the above opinions, the examiner must address the conflicting medical evidence of the October 2016 VA opinion which indicated that the bilateral foot condition clearly and unmistakably existed prior to service. The examiner must also provide a clear rationale for any opinion provided. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.