Citation Nr: 21040804 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-54 035 DATE: July 7, 2021 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 Air Force from July 1954 to December 1957. The instant matter is on appeal from a June 2016 rating decision. In May 2018, the Veteran testified before the undersigned in a videoconference hearing. A transcript of the proceedings has been associated with the record. This case has a significant procedural history. Most recently, in February 2021, the Board remanded this issue in order to attempt to obtain relevant private treatment records, as well as a more thorough etiological opinion with respect to the disability on appeal. 1. The claim of entitlement to service connection for bilateral pes planus is remanded. Unfortunately, remand is again necessary in order to comply with previous remand instructions. Initially, the Regional Office did not attempt to solicit additional relevant treatment records from the Veteran. A notification letter was sent in February 2021, but the letter discussed eBenefits, the self-service portal for veterans and their families. Correspondence was not sent to the Veteran to request additional private treatment records and provide a release for those records. Secondly, the April 2021 addendum opinion failed to adequately consider the Veteran's lay reports of foot pain both during and after service. As previously discussed in detail, the Veteran has reported significant foot symptoms during service. The Veteran subjectively denied foot trouble in his entrance examination, and asymptomatic pes planus was noted at the time. His November 1957 separation examination report of medical history endorsed foot trouble. The June 1969 VA examination reflects subjective reports of foot symptoms since the Veteran's discharge from service. Despite these lay reports of symptoms, the April 2021 medical opinion simply states that "record review did not reveal continuous ongoing medical treatment or aggravation of acute or chronic pre-service right and left pes planus condition during time of discharge from active military service to present day." The examiner cannot rely on an absence of records to support this conclusion, but he must consider the Veteran's lay statements regarding symptomatology in any response. Accordingly, remand is once again necessary in order to obtain a thorough etiological opinion that appropriately considers the Veteran's lay reports of symptoms. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Contact the Veteran and the representative of record in order to identify any outstanding non-VA treatment records regarding the issues on appeal. If non-VA providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the non-VA treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and the representative of record, and afford an opportunity to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 3. Once the aforementioned development is complete, obtain a medical opinion from a new examiner, if possible, to address the etiology of the Veteran's present bilateral pes planus. A new examination may be ordered if deemed necessary by the examiner. The examiner must consider the Veteran's lay statements regarding observable symptomatology both during and after service. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) Based upon the medical and lay evidence of record, is there clear and unmistakable evidence (such that reasonable minds could not differ) that bilateral pes planus preexisted active duty service? (b.) If you determine that bilateral pes planus clearly and unmistakably preexisted service, was it clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during service? Specifically discuss the Veteran's lay statements of observable symptoms during service. (c.) If it is found that there is clear and unmistakable evidence that the Veteran's bilateral pes planus existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, please clearly indicate the basis/evidence supporting your conclusions. (d.) If the Veteran's bilateral pes planus did not preexist service OR it was not aggravated by service, please then opine as to whether it is at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's bilateral pes planus is etiologically related to his active duty service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, 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 H. Fisher, 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.