Citation Nr: 21025793 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-04 889 DATE: April 29, 2021 REMANDED Entitlement to service connection for a disability involving pain of the chest is remanded. Entitlement to service connection for a bilateral foot disability, including pes planus, is remanded. Entitlement to service connection for a back disability, to include as secondary to pes planus, is remanded. Entitlement to a bilateral leg condition, to include as secondary to pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1990 to June 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that, in his VA Form 9 (Appeal to Board of Veterans’ Appeals), the Veteran requested to appear at a hearing before a member of the Board. He was scheduled for an October 2019 hearing, but did not attend. The Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704(d). Although the Board sincerely regrets the additional delay, the Veteran’s claims must be remanded before the Board is able to make a determination on the merits. 1. Entitlement to service connection for disability involving pain of the chest is remanded. The Veteran is seeking entitlement to service connection for disability involving pain of the chest. He contends that he developed chest pain in service and that the condition has continued since. The Veteran was afforded an examination in December 2013. Following examination, the examiner indicated that Veteran was diagnosed with costochondritis during service but that the condition is transient and that it goes away within days or months. The examiner concluded that it was less likely than not “that the current chest condition” was “secondary to his active military service.” The Board finds the December 2013 medical opinion is inadequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner indicates that the Veteran’s chest pain condition in service was transient, and yet suggests that he has a current condition. Furthermore, the use of the word secondary indicates that the examiner’s opinion did not adequately address whether the chest pain condition is directly related to service. Under the circumstances, an addendum opinion is warranted for clarification purposes. 2. Entitlement to service connection for a bilateral foot disability, including pes planus, is remanded. The Veteran seeks to establish service connection for bilateral pes planus. He asserts that the condition was aggravated by his active service. Every Veteran who served in the active military, naval, or air service after December 31, 1946 is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only those conditions recorded in examination reports can be considered as “noted,” 38 C.F.R. § 3.304(b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). If a disorder noted at the time of a Veteran’s examination, acceptance, and enrollment into service undergoes a chronic or permanent increase in severity during service, it is presumed that the disability was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). This presumption can be rebutted only by clear and unmistakable evidence demonstrating that the increase was due to the natural progress of the condition. 38 C.F.R. § 3.306(b). In the present case, the report of the Veteran’s enlistment examination reflects the presence of pes planus. See August 1990 enlistment examination report. Because the condition was noted at enlistment, the presumption of soundness does not apply. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304. If a pre-existing disability, such as pes planus, is noted upon entry into service, as is in this case, the claim is one for aggravation. In November 2013, the Veteran underwent a VA examination. The Board finds that opinion inadequate because it fails to address the question of aggravation. See Barr, supra. The Board finds an addendum opinion is required to address this theory of entitlement. 3. Entitlement to service connection for a back disability is remanded. The Veteran seeks to establish service connection for a back disability. He contends that he has had a back pain since service. Alternatively, he contends that his back disability was aggravated by his pes planus condition. The Veteran was afforded a VA examination in November 2013. After examining the Veteran and reviewing the record, the examiner opined that the Veteran’s current back disability was less likely than not related to service. However, the examiner made no conclusions as to the relationship between the Veteran’s back disability and his bilateral foot disability. As noted above, the Board has already decided to remand the matter of service connection for the Veteran’s bilateral foot disability. Because a decision on the remanded bilateral pen planus claim could significantly impact the back disability claim, the issues are inextricably intertwined. As such, the Board finds a remand of the back disability claim is also required. 4. Entitlement to service connection for a bilateral leg condition is remanded. The Veteran contends that he has a bilateral leg condition is a result of his pes planus. Again, because a decision on the remanded pen planus disorder claim could significantly impact the bilateral leg claim, the issues are inextricably intertwined. A remand of the bilateral leg claim is also required. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Forward the claims file to an appropriate VA examiner for an addendum opinion in regard to the Veteran’s chest pain condition. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s current chest pain disability had its onset in, or is otherwise attributable to, the Veteran’s periods of active service. A complete rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. 3. Also forward the claims file to an appropriate VA examiner for an addendum opinion in regard the etiology of the Veteran’s bilateral foot disability. After reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether the Veteran’s foot disability clearly and unmistakably (i.e., undebatably) pre-existed his period of active service. In doing so, the examiner should discuss the August 1990 enlistment examination report reflecting the presence of pes planus. If it is the examiner’ opinion that the Veteran’s foot disability pre-existed service, the examiner should offer a further opinion as to whether it is also clear and unmistakable that the Veteran’s foot disability was NOT aggravated during service beyond its natural progression. If the examiner does not find clear and unmistakable evidence that the Veteran’s foot disability pre-existed service OR the examiner is unable to find clear and unmistakable evidence that the Veteran’s pes planus was not aggravated by service, the examiner must opine as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s foot disability had its onset in, or are otherwise related to, the Veteran’s period of active service. A complete medical rationale for all opinions expressed must be provided. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinion. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs (to include, if warranted, obtaining a medical opinion as to whether the Veteran’s back disability or bilateral leg disability as secondary to a bilateral foot disability), the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph T. Leonard, 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.