Citation Nr: 21030881 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-13 921 DATE: May 19, 2021 REMANDED The claim of entitlement to service connection for a lumbar spine condition is remanded. The claim of entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from January 1979 to March 1979. These matters come before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veteran's Law Judge. A transcript of that hearing has been associated with the claims file. In April 2019, the Board denied the Veteran's claims. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court issued a memorandum decision in which it set aside the Board's April 2019 decision and remanded the matters back to the Board for further proceedings. In its decision, the Court found that the Board erred by relying on inadequate and/or unclear VA examinations for the claimed conditions. Given the Court's decision, the Board finds remand necessary for additional development. 1. The claim of entitlement to service connection for a lumbar spine condition is remanded. The Veteran contends that his lumbar spine condition is causally related to active service. Remand is warranted in order to provide the Veteran with an adequate medical examination. 2. The claim of entitlement to service connection for bilateral pes planus is remanded. The Veteran contends that his bilateral pes planus is causally related to active service, to include as due to aggravation. In this case, the Veteran's October 1978 enlistment examination explicitly notes the presence of mild, asymptomatic pes planus. As the Board previously determined, given that the condition was noted at the time of examination and acceptance, the condition preexisted service. Where a preexisting disorder is noted upon entry into service, a Veteran cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder, in which case 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Remand is warranted in order to either obtain an addendum opinion clarifying the May 2014 examiner's opinion, or, provide the Veteran with a new medical examination. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any identified record cannot be obtained, the Veteran should be notified in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. For the lumbar spine condition, schedule the Veteran for examination by an appropriate clinician to assess the nature and etiology of his back condition. All indicated diagnostic evaluations should be conducted. (a.) The examiner shall take a thorough history of observable symptomatology from the Veteran concerning the onset and course of his claimed back disability and should review all lay and medical evidence of record. (b.) The examiner shall identify all diagnoses pertaining to the Veteran's lumbar spine. (c.) For each identified condition, the examiner shall opine whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the condition manifested during, or as a result of active military service. The opinions should address the Veteran's lay reports of symptoms both during and after service. 3. Regarding the claimed bilateral pes planus, the RO should obtain an addendum opinion or, if deemed necessary, schedule the Veteran for a new VA examination with a qualified clinician. Either way, the opining clinician must address the following: (a.) Consider the Veteran's October 1978 entrance examination, which noted that the Veteran had mild, asymptomatic bilateral pes planus prior to enlistment. Further, consider lay and medical evidence regarding the Veteran's bilateral pes planus throughout service, including evidence provided at his separation examination in March 1979. Then, opine whether there was an increase in the underlying severity of the Veteran's pes planus during his active service. Please discuss the evidence (lay and medical) relied upon in formulating this opinion. The examiner is encouraged to specifically address whether the February 1979 service treatment records describing swollen feet and painful arches indicates a worsening of the underlying condition or were merely temporary/flare-ups of symptoms. (b.) If the clinician concludes that there was an increase in the underlying severity of the condition during active service, then the clinician shall opine as to whether there is clear and unmistakable evidence (obvious or manifest) that the increase in disability was due to the natural progress of the disease. Discuss the evidence relied upon in providing this opinion. 4. Following completion of the foregoing, the Agency of Original Jurisdiction (AOJ) should review the record and readjudicate the claim on appeal. If the claims remain denied, the AOJ should issue an appropriate supplemental Statement of the Case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hart, Courtney 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.