Citation Nr: 21014983 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-04 323 DATE: March 16, 2021 REMANDED The issue of entitlement to service connection for a bilateral foot disability, to include bilateral pes planus, is remanded. The issue of entitlement to service connection for a bilateral leg disability, to include bilateral leg neuropathy, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1960 to August 1963. In August 2020, this matter was remanded by the Board for additional development. For the reasons outlined below, the Board finds that remand is again needed. The issues on appeal have been expanded and recharacterized pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a bilateral foot disability, to include bilateral pes planus. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. At the outset, the Board notes that the Veteran has been given new VA examinations since the October 2020 supplemental statement of the case (SSOC). For example, he was afforded a knee and lower leg VA examination in January 2021 and a back examination in March 2021. The Board has not identified a waiver from the Veteran or his representative of AOJ review of this new evidence. Accordingly, remand is appropriate. In addition, the Board finds that new VA opinions are needed for the following reasons. Regarding the Veteran’s claimed foot disability, the Board acknowledges the VA opinion obtained in September 2020. In that opinion, the examiner states the following: There’s no evidence in the e-file to support the assumption that the forced marches, doing squat jumps, and jumping from helicopters during service caused his arches to collapse. No family hx of pes planus is considered, nor his daily weight bearing, activities, shoe type etc. I cannot correlate these conditions without completely speculating. (Emphasis added). The Board finds this statement problematic for a number of reasons. First, the Board does not understand what is meant by “No family hx of pes planus is considered, nor his daily weight bearing, activities, shoe type etc.” Specifically, the Board asks that an examiner clarify who did not consider the Veteran’s family history, his daily weight bearing, activities, shoe type, etc. and why. In addition, the Board notes that the Veteran’s service treatment records (STRs) show that the Veteran requested and received permission to wear special double-soled shoes. See STR, April 1962. Accordingly, the examiner’s statement that “shoe type” was not considered is problematic. Also, the Board seeks clarification regarding the examiner’s statement concerning speculation. It is unclear to the Board whether the examiner is referring to their own limitations or that of medical community. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (indicating that “[t]he phrase ‘without resort to speculation’ should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner.”) Clarification is needed upon remand. Finally, in addition to the above, when rendering a new VA opinion, the Board asks that the examiner address a notation in the Veteran’s STRs that suggests pes planus was identified on the date of his entry into service. See STR, August 1960. In the new opinion, the Board asks that the examiner clarify whether the Veteran’s claimed foot disability pre-existed service. 2. Entitlement to service connection for a bilateral leg disability, to include bilateral leg neuropathy. Similarly, the Board finds that a new opinion is needed regarding the claimed leg disability. In the September 2020 VA opinion, the examiner states the following: The vet’s condition’s etiology is unexplained in the records. The neuropathy could be due to tarsal tunnel syndrome, popliteal nerve entrapment/neuritis, back problems, metabolic etc. I found no evidence to correlate the symptoms to any particular cause and attributing it to the service, specifically his forced marches, doing squat jumps, and jumping from helicopters during service would be completely speculative. Here again, the Board seeks clarification of the examiner’s statement regarding speculation. That is, the examiner should clarify whether they are referring to their own limitations or that of medical community. See Jones, supra. Further, the Board seeks clarification regarding the reference to “back problems.” The Veteran’s STRs note lordosis NCD on the date of his entry to service. See STR, August 1960. A March 1963 STR indicates pain in the Veteran’s upper back for a week. The Board notes that the Veteran has filed a claim for, inter alia, lumbar strain. See VA Form 21-526EZ, November 2020. However, it does not appear that a decision has been issued regarding this claim. If, following this remand, the Veteran is service connected for a back disability, the Board also asks that an examiner address whether the Veteran’s claimed leg disability can be established on a secondary basis. Finally, the Board notes also that the Veteran’s STRs indicate that he injured his left knee while running. See STR, October 1962. The Board asks that this treatment be addressed in the new VA opinion. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, obtain the following VA opinions from a different VA examiner than the one who provided the September 2020 opinions. If necessary, schedule the Veteran for a new VA examination. Foot disability Please obtain a VA opinion that addresses the following regarding the Veteran’s claimed foot disability: (a) Whether it is at least as likely as not that the disability(ies) clearly and unmistakably pre-existed service. The Board notes that the Veteran’s STRs note pes planus on the date of his entry into service. See STR, August 1960. (b) If there is clear and unmistakable evidence that the claimed disability(ies) preexisted service, then the examiner should address whether it is at least as likely as not that there is clear and unmistakable evidence that the claimed disability was not permanently aggravated by service. If not, the examiner should then address whether it is at least as likely as not that it was caused by the Veteran’s active duty service. The Board notes that a preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306 (a). (c) If it is determined that the disability(ies) did not clearly and unmistakably preexist service, then the examiner should address whether it is at least as likely as not that it was caused by the Veteran’s active duty service. In addressing the above, the Board asks that the examiner address the following: (1) the notations in the STRs indicating that the Veteran requested and received permission to wear special double-soled shoes. See STR, April 1962; (2) the Veteran’s reports of forced marches, doing squat jumps, and jumping from helicopters during service. See VA Form 21-526, November 2011. In addition, the Board asks the examiner to comment on the following from the September 2020 VA opinion: (1) the statement that “No family hx of pes planus is considered, nor his daily weight bearing, activities, shoe type etc.” The Board asks that an examiner clarify who did not consider the Veteran’s family history, his daily weight bearing, activities, shoe type, etc. and why; (2) also, the Board seeks clarification regarding the examiner’s statement concerning speculation. It is unclear to the Board whether the examiner is referring to their own limitations or that of medical community. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (indicating that “[t]he phrase ‘without resort to speculation’ should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner.”) Clarification is needed upon remand. Leg disability Please obtain a VA opinion that addresses the following regarding the Veteran’s claimed leg disability: (a) A VA opinion to address the etiology of the claimed leg disability. For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service. The examiner is asked to specifically address: (1) treatment regarding a left knee injury in service. See STR, October 1962; (2) the Veteran’s reports of forced marches, doing squat jumps, and jumping from helicopters during service. See VA Form 21-526, November 2011. In addressing the above, the Board asks the examiner to comment on the following regarding the September 2020 VA examiner’s statement regarding speculation. That is, the examiner should clarify whether they are referring to their own limitations or that of medical community. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (indicating that “[t]he phrase ‘without resort to speculation’ should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner.”). (b) In addition, if the Veteran is service-connected for a back or knee disability, then the examiner is also asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that claimed leg disability is proximately due to, or the result of, or aggravated (permanently worsened) beyond normal progression by the back or knee disability. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.