Citation Nr: 21029182 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-34 970 DATE: May 12, 2021 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served in the National Guard from April 1987 to November 1989 with a period of active duty for training from August 1987 to November 1987. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the Veteran's claim was before the Board in January 2019. However, as discussed below, the Board's prior remand directives have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for bilateral pes planus The Veteran contends that service connection is warranted for bilateral pes planus and that his pes planus was aggravated by service. The Board finds that a remand is warranted for additional development. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for the Veteran to be given an opportunity to attend a rescheduled VA examination. Based on the prior remand directives, the Veteran was scheduled for a VA examination in October 2019. A notation from the VA contractor indicates that the Veteran was a no show for the October 2019 VA examination. The Veteran was notified of the missed VA examination in written correspondence via the May 2020 supplemental statement of the case (SSOC). The Veteran submitted correspondence in July 2020 requesting the missed October 2019 VA examination be rescheduled as he missed the prior examination due to a medical emergency and needing to seek urgent treatment. As the Veteran has provided good cause relating to his failure to appear at the October 2019 VA examination the Veteran should be provided the opportunity to attend another VA examination. The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to his claim and that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Further, the Veteran is reminded that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). As such the Board finds a remand is warranted for the Veteran to be afforded an opportunity for another VA examination. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination for his pes planus. The examiner must review the claims file. The examiner is asked to provide a response to the following: (a.) Did the Veteran's bilateral pes planus, which existed prior to service, at least as likely as not (a 50 percent probability or greater) increase in severity during his active duty for training from August 1987 to November 1987? (b.) If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in-service." Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran's lay statements noting a worsening of his pes planus during service with ongoing flare ups that began during service and have continued since. Specifically, the Veteran contends that his pes planus was aggravated by his physical training including running, marching, calisthenics and jumping performed in boots that were ill fitting and compressed his feet during his four months of active duty for training. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.