Citation Nr: 21040659 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-59 332 DATE: July 6, 2021 REMANDED The issue of entitlement to service connection left foot condition, diagnosed as hallux valgus, to include as secondary to bilateral pes planus, is remanded. The issue of entitlement to service connection for left ankle condition, to include as secondary to bilateral pes planus, is remanded. The issue of entitlement to service connection for right ankle condition, to include as secondary to bilateral pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 2008 to March 2012. This appeal arose from a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In Janaury 2019 and February 2020, the Board remanded the claims for further evidentiary development. In August 2020, the Agency of Original Jurisdiction (AOJ) awarded entitlement to service connection for bilateral pes planus. Based on the evidence, the Board has recharacterized the issues as stated above. After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's remaining claims on appeal. 1. The issue of entitlement to service connection left foot condition, diagnosed as hallux valgus, to include as secondary to bilateral pes planus, is remanded. Initially, the Veteran sought entitlement to service connection for a left and right foot condition. As previously mentioned, the Veteran is now service connected for bilateral pes planus. At the March 2020 VA examination, the Veteran was also diagnosed with hallux valgus of the left foot. The examiner opined that it was less likely than not that the Veteran's hallux valgus was due to his service. However, the examiner did not provide a rationale to support this conclusion. Also, in the March 2020 examination report, the examiner indicated that the condition clearly and unmistakably existed prior to service and was not aggravated by service. Although the service treatment records show pes planus to be noted on his entrance examination, hallux valgus was not noted upon the Veteran's entrance into service. To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3 03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. Further, the March 2020 VA examination did not provide an opinion as to whether the hallux valgus was caused or aggravated by the pes planus. See 38 C.F.R. § 3.310. For all these reasons, the Board finds the March 2020 VA examiner's opinion does not adequately address the evidence of the record regarding the etiology of the Veteran's left foot hallux valgus. In order to make a clear and informed determination in this matter, the Board finds that a remand is necessary in order obtain another opinion that adequately addresses whether the Veteran's left foot hallux vagus is related to his service, and/or secondary to the service-connected pes planus. 2. The issue of entitlement to service connection for left ankle pain, to include as secondary to bilateral pes planus, is remanded. 3. The issue of entitlement to service connection for right ankle pain, to include as secondary to bilateral pes planus is remanded. In the most recent examination in March 2020, the examiner indicated that the Veteran did not have current diagnoses of a right or left ankle condition, due to no objective evidence of pain on the examination. In that examination, the Veteran reported experiencing pain with prolonged walking and wearing regular tennis shoes. He also reported experiencing flare-ups. VA medical treatment records show that the Veteran has been assessed to have bilateral ankle pain. In March 2016, x-rays views were taken of the Veteran's ankles. The impression provided was mild posterior calcaneal enthesopathy of both ankles. Furthermore, when the Veteran complained of foot pain in April 2016, it was noted that pain was localized to the medial ankle region and that he experienced swelling in his ankles. See November 2016 VA Medical Treatment Records (CAPRI). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may resolve prior to adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this current matter, the evidence shows that the Veteran has been assessed to have bilateral ankle disability during the pendency of his appeal. Furthermore, the evidence indicates that his ankle condition could be related to his bilateral foot condition, which raises the theory of secondary service condition. Accordingly, on remand, the AOJ should obtain another opinion that adequately addresses all of the evidence of the record regarding the nature and etiology of the Veteran's bilateral ankle condition. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that he may submit any such records himself. All efforts should be recorded in the claims folder. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for VA examinations) to address the nature and etiology of the Veteran's left foot and bilateral ankle conditions. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: Left Foot Hallux Valgus (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hallux valgus of the left foot was incurred in, caused by, or etiologically related to the Veteran's service? (b) Is it at least as likely as not (a 50 percent or greater probability) that his hallux valgus is caused by his service-connected bilateral pes planus? (c) Is it at least as likely as not (a 50 percent or greater probability) that his hallux valgus is aggravated (i.e., worsened beyond the natural progress) by his service-connected bilateral pes planus. If the Veteran's left foot hallux valgus is deemed not to be due to, or aggravated by his bilateral pes planus, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's left foot hallux valgus is aggravated by his bilateral pes planus, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of left foot hallux valgus is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation. Bilateral Ankle Condition (a) Please provide the diagnosis or diagnoses of a right or left ankle condition found to be present during the pendency of this appeal. If there are different diagnoses than those currently of record, the examiner should attempt to reconcile the diagnoses with the evidence of record. The examiner must consider and address the VA treatment records documenting a right and left ankle condition. See November 2016 VA Medical Treatment Records (CAPRI). If there is no diagnosis of a right or left ankle disability, and only pain is identified in the affected joint(s), note whether pain alone results in functional impairment and note the functional limitation caused by such pain. (b) For any ankle condition identified during the pendency of this appeal, is it at least as likely as not (50 percent or greater probability) that any such ankle condition is caused by, or etiologically related to the Veteran's service? (c) Is it at least as likely as not (a 50 percent or greater probability) that any ankle disability is caused by his service-connected bilateral pes planus? Is it at least as likely as not (a 50 percent or greater probability) that any ankle disability is aggravated (i.e., worsened beyond the natural progress) by his service-connected bilateral pes planus? If any identified ankle disability is deemed not to be due to, or aggravated by his service-connected bilateral pes planus, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran's ankle condition is aggravated by his bilateral pes planus, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of his ankle condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] An opinion and rationale must be provided for each ankle. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claims. If any benefit sought remains denied, furnish to the Veteran (and if appropriate at the time, his representative) an appropriate supplemental statement of the case (SSOC). The Veteran should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. John Kitlas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.