Citation Nr: 21030322 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-46 547A DATE: May 18, 2021 REMANDED Entitlement to service connection for pes planus is remanded. Entitlement to service connection for ulcerative colitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from August 1987 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a virtual hearing before the undersigned in September 2020. A transcript of the proceeding is of record. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. 1. Entitlement to service connection for pes planus is remanded. The Veteran contends that his pes planus was caused by his active duty military service. He testified during his September 2020 virtual hearing that he could not recall having problems with his feet prior to his service, but feels that his condition was caused by standing watch for 16 or 24-hour shifts pacing in uncomfortable boots or by prolonged periods of marching and walking during training. He currently experiences sharp, shooting pains in his feet and legs as a result of his pes planus. The record reflects that the Veteran has a current diagnosis of pes planus. Seven years after exiting the military, the Veteran underwent a VA examination in March 1997, which included this diagnosis. Pes planus is also recorded as a diagnosis on a July 2017 VA examination, and it is similarly documented throughout his VA treatment records. The Board therefore concedes that the Veteran has a current diagnosis of pes planus. Service treatment records (STRs) include an enlistment Report of Medical Examination dated November 1986 that recorded mild, asymptomatic pes planus. The physician noted "flexible, no supports" in relation to this condition. In his enlistment Report of Medical History, the Veteran documented that he had cramps in his legs, but did not record experiencing any foot problems. In July 1989, however, he sought treatment for painful arches with prolonged standing; the physician indicated he had moderate bilateral pes planus at that time and referred him for a podiatric consult. He was provided with foot orthotics for conservative treatment. However, the only opinion of record for the Veteran's pes planus determined that "there is no objective evidence in the medical record that the Veteran's...pes planus, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression during service," rationalizing that there is no medical record of chronic foot pain during service periods. This opinion relies on an inaccurate set of facts, as the Board has clearly established that the Veteran sought treatment for his pes planus during his active duty service. The Board will remand for an opinion that considers whether the Veteran's pes planus was aggravated beyond its natural progression during his service. 2. Entitlement to service connection for ulcerative colitis is remanded. The Veteran contends that his ulcerative colitis first manifested during his active duty service. He testified that he was originally diagnosed with gastroenteritis but that because he was not treated by a specialist, it is plausible he was misdiagnosed. He reportedly treated his condition for a number of years with over-the-counter medications until his symptoms became too severe, at which time he saw a gastroenterologist and received a diagnosis of ulcerative colitis. Alternatively, he suggests that his ulcerative colitis may have been caused by exposure to ionizing radiation. The record reflects that the Veteran has a current diagnosis of ulcerative colitis. He submitted a Disability Benefits Questionnaire (DBQ) in July 2014 from his provider with ulcerative colitis marked under the diagnosis section. Ulcerative colitis is also recorded as a diagnosis on a July 2017 VA examination, and it is similarly documented throughout his VA treatment records. The Board therefore concedes that the Veteran has a current diagnosis of ulcerative colitis. STRs do not include reference to any gastrointestinal problems; notably, both his entrance Report of Medical History and Report of Medical Examination are silent for any symptoms of ulcerative colitis or gastrointestinal condition. However, STRs do include a treatment note dated January 1989 recording that the Veteran was experiencing abdominal cramps, nausea, and diarrhea. He was diagnosed with gastroenteritis and the record does not include further evidence of these symptoms continuing. The examiner who performed the July 2017 VA examination opined it was less likely than not that the Veteran's ulcerative colitis was incurred in or caused by an in-service injury, event, or illness. She rationalized that he was not diagnosed with this condition until 2000, and thus a nexus is not established. The Board finds this opinion faulty, however, because the examiner did not consider the in-service bout of gastroenteritis or provide an opinion whether this was the beginning of his ulcerative colitis. The Board will therefore remand for an opinion that determines whether the Veteran's in-service gastroenteritis may have actually been early signs of ulcerative colitis. The Board notes that the Veteran has submitted an article discussing the effects of ionizing radiation, but has not submitted competent evidence suggesting that his particular disease - ulcerative colitis - may be a radiogenic disease. The Veteran is hereby advised of his right to submit evidence suggesting that ulcerative colitis may be a radiogenic disease. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with his file, specifically those records from April 2020 to the present. 2. Advise the claimant of his right to submit evidence suggesting that ulcerative colitis may be a radiogenic disease. 3. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for pes planus or ulcerative colitis. Thereafter, obtain and associate with the claims folder any private treatment records identified. 4. Then, the Veteran should be afforded an appropriate VA examination in order to determine the current nature and etiology of his bilateral pes planus. The claims file must be made available to and be reviewed by the examiner. The examiner should provide an opinion indicating whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pes planus occurred in or is otherwise etiologically related to the Veteran's military service. Additionally, the examiner should provide an opinion determining whether the Veteran's pes planus was at least as likely as not aggravated beyond its natural progression by his active duty service. The examiner should specifically discuss the difference in medical terminology used in the entrance examination (mild, asymptomatic pes planus and being "flexible, no supports) with the STRs (painful arches with prolonged standing, a description of moderate bilateral pes planus resulting in foot orthotics as conservative treatment) and why or why not this demonstrated aggravation of the underlying condition. The examiner should consider the following: the Veteran's STRs, specifically his entrance examination and the July 1989 treatment notes for pes planus; the March 1997 VA examination for pes planus; the July 2017 VA examination and opinion for pes planus; and the Veteran's September 2020 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 5. The Veteran should also be afforded an appropriate VA examination in order to determine the current nature and etiology of his ulcerative colitis. The claims file must be made available to and be reviewed by the examiner. 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 ulcerative colitis occurred in or is otherwise etiologically related to the Veteran's military service, to include his in-service diagnosis of gastroenteritis. The examiner should identify the symptoms of ulcerative colitis and the criteria for diagnosing the disorder, and provide an opinion as to whether there is any medical reason to accept or reject the Veteran's contentions that he has manifested chronic ulcerative colitis symptoms since service? The examiner should consider the following: the July 2014 DBQ for ulcerative colitis, whereby the physician indicated this condition occurred while serving in the military; the July 2017 VA examination and opinion for ulcerative colitis; and the September 2020 hearing testimony. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 6. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.