Citation Nr: 21015093 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-23 379A DATE: March 16, 2021 REMANDED Entitlement to service connection for bilateral foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1964 to January 1968. In February 2019, the Board issued a decision denying entitlement to a bilateral foot disorder. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a December 2019 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's February 2019 decision and remanded the case for action consistent with the JMPR. The Board, in turn, remanded these claims to the agency of original jurisdiction (AOJ) in June 2020 and again in December 2020 to comply with the Court-granted JMPR. Unfortunately, a review of the record indicates that there has not been substantial compliance with the previous remand directives and further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court instructed the Board obtain an opinion to address the proper legal standard with respect to the claim for service connection for a bilateral foot disorder that as a congenital disability, was found to exist prior to entering service. In the December 2020 VA examination, the examiner checked the box that “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury or illness.” However, in the rationale section, the examiner stated that without a known traumatic or inciting event within service treatment records, it was "less likely than not" that the Veteran's claimed disorders were aggravated beyond its normal progression due to service. The examiner's inconsistent use of standards of proof renders the examination report inadequate for purposes of the appeal. Thus, an addendum is required. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion to determine whether the Veteran's bilateral foot disorders, to include pes planus, did not clearly and unmistakably increase in severity during service beyond its natural progression. The claims file should be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner is advised that the evidentiary standard is a formidably one, requiring that the conclusion there was no aggravation be undebatable. The examiner should address the following: (a.) Is there clear an unmistakable evidence that the Veteran’s pre-service bilateral foot disorder was not aggravated (i.e., is it undebatable that the disability did not undergo a permanent increase in severity) during the Veteran’s period of active service? (b.) If the Veteran’s pre-existing bilateral foot disability did undergo a permanent increase in severity during service, was that permanent increase in severity during service clearly and unmistakably due to the natural progress of the condition? The reasons for the conclusions expressed should be clearly explained. 2. Re-adjudicate the appeal. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.