Citation Nr: 21023695 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-25 421 DATE: April 21, 2021 REMANDED The issue of service connection for a bilateral foot disability, including pes planus, is remanded. The issue of service connection for restless leg syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to July 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 and November 2019, the Board remanded the appeal for additional development. The Board notes that the issue of service connection for a restless leg syndrome was originally denied in a January 2010 rating decision. The Veteran did not appeal this decision and new and material evidence was not received within one year after it was issued. The September 2018 and November 2019 prior Board remands addressed the claim on the merits. Therefore, as the prior Board remands implicitly found that new and material evidence was submitted to reopen the claim of service connection for restless leg syndrome, the Board will address the claim on the merits. The claim of service connection for a bilateral foot disability, including pes planus, has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). See Veteran’s notice of disagreement (June 2013) (where he reported that he had bunions on his feet); VA examination report (September 2017) (where the VA examiner diagnosed bilateral pes cavus). 1. The issue of service connection for a bilateral foot disability, including pes planus, is remanded. The Veteran seeks service connection for bilateral pes planus; he asserts that his disability is related to his military service. See Veteran’s claim (October 2011). He reports that he experienced hot and cold sensations in his feet, stabbing pains, and that he had bunions on his feet. See Veteran’s notice of disagreement (June 2013); VA Form 9 (May 2016). In the Veteran’s December 1967 enlistment examination report, he checked the box indicating foot trouble; his feet were noted normal upon clinical evaluation. A February 1970 service treatment record (STR) notes that the Veteran had a wound to the right achilles tendon. The Veteran’s June 1970 separation report shows that his feet were noted normal upon clinical evaluation; the examining physician noted that the Veteran’s Achilles tendon was painful and stiff due to an in-service gunshot wound. In September 2017, the Veteran was afforded a VA examination; the examiner diagnosed bilateral pes cavus. The VA examiner noted that the Veteran’s service-connected disabilities included right pes cavus. The September 2017 VA examiner did not indicate whether the Veteran had pes planus; additionally, the examiner did not provide an etiology of the left pes cavus. In a February 2018 addendum opinion, the September 2017 VA examiner indicated that the Veteran had right midfoot osteoarthritis and wrote that it was “unrelated to the service injury.” No further explanation was provided. In September 2018 and November 2019, the appeal was remanded to schedule the Veteran for a VA examination to determine whether he had pes planus and whether it was related to or had its onset in service. The Veteran failed to appear to the scheduled examinations. See exam scheduling request contention cancellation reports (July 2019; January 2020). Although the Veteran failed to report to the VA examinations in 2019 and 2020, he appeared to the September 2017 VA foot examination and the VA examiner did not provide an etiology of the left pes cavus and failed to provide an adequate explanation as to why the Veteran’s right midfoot osteoarthritis was unrelated to his military service. Therefore, a remand is necessary to obtain a VA medical opinion to address the Veteran’s claim of service connection for a bilateral foot disability. 2. The issue of service connection for restless leg syndrome is remanded. The Veteran claims that he has restless leg syndrome and that it is related to his military service. In this case, there has been conflicting evidence as to whether the Veteran has or had a diagnosis of restless leg syndrome. For example, a January 2015 private treatment record shows an assessment of restless leg syndrome. In a separate January 2015 private report, the private physician appeared to indicate that the Veteran’s restless leg syndrome was an associated symptom to his service-connected neuropathy. In contrast, in a June 2011 sleep consult report and in a May 2015 central nervous system and neuromuscular diseases disability benefits questionnaire, the treatment providers found that the Veteran did not have restless leg syndrome. Notably, the June 2011 sleep consult report notes that the Veteran’s history was not supportive of restless leg syndrome. The June 2011 and May 2015 treatment providers did not address the Veteran’s private treatment records that show a diagnosis of restless leg syndrome. In September 2018 and November 2019, the appeal was remanded to schedule the Veteran for a VA examination to determine whether he had restless leg syndrome and whether it was related to or had its onset in service. The Veteran did not report of this examination. Although the Veteran failed to report to the VA examinations in 2019 and 2020, the evidence is unclear as to whether he has or had a diagnosis of restless leg syndrome and the etiology thereof. Therefore, a remand is necessary to obtain a VA medical opinion to address the Veteran’s claim of service connection for restless leg syndrome. The matters are REMANDED for the following action: 1. Refer the claims file to an examiner for an opinion as to the Veteran’s claim of service connection for a bilateral foot disability, including pes planus. The examiner should identity all of the Veteran’s feet disabilities since the date of his claim in October 2011. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral foot disability, to include left foot pes cavus and right midfoot osteoarthritis, had its/their onset in service or is/are otherwise related to service, to include as due to an in-service gunshot wound and/or an in-service Achilles tendon wound. The examiner must provide a rationale for the opinion. 2. Refer the claims file to an examiner for an opinion as to the Veteran’s claim of service connection for restless leg syndrome. The examiner should identity whether the Veteran had restless leg syndrome since the date of his claim in October 2011, even if the disability has resolved. The examiner should address the Veteran’s January 2015 private treatment records that show a diagnosis of restless leg syndrome. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s restless leg syndrome had its onset in service or is otherwise related to service. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected neuropathy in the right and left lower legs caused or aggravated his restless leg syndrome. The examiner should address the January 2015 private report where the private physician appeared to indicate that the Veteran’s restless leg syndrome was an associated symptom to his service-connected neuropathy. The examiner must provide a rationale for each opinion. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.