Citation Nr: 21039821 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-11 342 DATE: July 1, 2021 REMANDED Entitlement to service connection for bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army on active duty from February 1971 to November 1972 and from February 1977 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter also has a lengthy procedural history that has been outlined in detail in prior Board decisions, the details of which are included herein by reference. Addressing the most recent and relevant procedural history, in October of 2020, the United States Court of Appeals for Veterans Claims (Court) issued a Joint Motion for Remand (JMR) in response to the Veteran's appeal of the Board's December 2019 denial of his claim. In the JMR, it was stated that: In September 2018, the Board remanded the pes planus claim for additional development because a November 2014 examiner failed to address whether Appellant's bilateral pes planus was secondary to his service-connected residuals of cold injury with neuropathy to both feet as well as whether Appellant's bilateral pes planus was aggravated by his service-connected right foot navicular fracture and/or residuals of the cold injury. R. at 260. Another opinion was obtained in January 2016, but no opinion was provided regarding the etiology of Appellant's bilateral pes planus or its relation to his service-connected disabilities. Unfortunately, the opinion obtained in January 2019 only addressed whether Appellant's bilateral pes planus was secondary to or aggravated by his service-connected cold-injury residuals. R. at 109-10. And when addressing whether Appellant's bilateral pes planus condition was aggravated beyond natural progression by his service-connected disabilities, the January 2019 examiner merely restated his secondary service connection opinion from page 109 and added, "therefore, an aggravation [opinion] beyond normal [natural] progression is not plausible," on page 110. This explanation is inadequate, and as a result, remand is warranted for compliance with the Board's September 2018 remand directives. After being returned to the Board, this case was remanded by the Board in March of 2021 for additional development, to specifically to include obtaining an addendum VA opinion in order to comply with the JMR. The Board asked for nexus opinions on both a direct and a secondary basis. The case has now been returned to the Board for further adjudication. Although the Board regrets the additional delay, an additional remand is required for further development and adjudicative action in order to fully comply with the directive to obtain an adequate VA opinion as stipulated in the Joint Motion for Remand. Specifically, the VA examiner authored a negative direct nexus opinion but provided in relevant part as rationale only that, "the entire c-file was reviewed including lay statements. While the lay statement conveys the onset of the condition during service, there is no objective evidence of the onset of pes planus during service or within the year following service. Report of medical examination 9/29/1972, 10/15/1976, 11/25/1986 and 7/24/1991 were negative for pes planus and feet were noted as normal. Earliest notation in the c-file shows the pes planus condition was diagnosed in 2010. There is a gap. A nexus is not established". However, while the examiner stated that "[t]here is a gap", the examiner did not attempt to explain the significance of "a gap" in regard to the nature and etiology of pes planus. Significantly, the other rationale offered by the VA examiner is seemingly based on a lack of in-service records and an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, the Board cannot make a fully-informed decision until an additional opinion is obtained from a VA examiner on remand in accordance with the findings of the October 2020 JMR in order to ensure substantial compliance with the previous Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician. The entire claims file, including a complete copy of this remand and the results of the VA examination undertaken on remand, should be made available to and be reviewed by the clinician, and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should answer the following: 2. With respect to the diagnosed bilateral pes planus, is it at least as likely as not that the identified disability was incurred in the Veteran's active duty service, or manifested within a year of his active duty discharge? In so opining, the examiner must provide a full rationale for all opinions offered (to include the significance of any "gap") and also should note that a lack of contemporaneous medical records cannot be used as the sole basis of rationale in explaining why any current disability is not related to service. 3. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.