Citation Nr: 21041101 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-22 672 DATE: July 8, 2021 REMANDED The claim for service connection for right foot pes planus (flatfoot), to include as secondary to service-connected left knee meniscus tear with arthritis, is remanded. The claim for service connection for left foot pes planus (flatfoot) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1998 until his honorable discharge in March 2001. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from an October 2018 decision by a Regional Office of the United States Department of Veterans Affairs (VA). In a February 2020 decision, the Board denied the Veteran's claims for service connection. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand (JMPR) submitted by the parties, the Court entered an order in March 2021 vacating the Board's decision in part and remanding the matter to the Board for readjudication. Within the parties' JMPR, they stipulated that: (1) the Board did not provide an adequate statement of reasons or bases for its determination that the Veteran did not experience aggravation of his bilateral pes planus in service; (2) the Board did not address relevant in-service medical records that referenced complaints associated with the Veteran's feet, to include February 2000 and March 2000 records; (3) the Board did not address the Veteran's July 2019 lay statements about worsening of his bilateral pes planus in service; and (4) the Board did not address the Veteran's lay statements that his in-service daily duties may have aggravated his bilateral pes planus. 1. The claim for service connection for right foot pes planus (flatfoot), to include as secondary to service-connected left knee meniscus tear with arthritis, is remanded. 2. The claim for service connection for left foot pes planus (flatfoot) is remanded. The Veteran received a VA-contracted examination addressing his bilateral pes planus in October 2018. The examiner opined that the Veteran's bilateral pes planus was less likely than not incurred in or caused "by the severe pes planus during service." The examiner reasoned that the Veteran had bilateral pes planus prior to active military service. There was no record of aggravation of bilateral pes planus, complaints of foot pain, or diagnoses of plantar fasciitis in service. The examiner cited a diagnosis of pes planus in 2014, thirteen years following separation from service. According to the examiner, the gap made is less likely his bilateral pes planus was related to his active service. The Board finds the opinion inadequate because the conclusion is unclear, and the rationale cites incorrect facts. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination when developing a service-connection claim, . . . he must provide an adequate one."); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based on an inaccurate factual premise has no probative value."). First, the examiner found the Veteran had bilateral pes planus prior to service, but then he cited a diagnosis in 2014 as the basis for determining his bilateral pes planus was not connected to his service. The Board cannot follow the examiner's logic. The conclusion then states the Veteran's bilateral pes planus is not caused "by the severe pes planus during service." The Board does not understand what the examiner is stating. Did the Veteran have separate bilateral pes planus disabilities or are these disabilities the same? Second, the examiner found no in-service complaints or treatment for feet issues. This was inaccurate. A June 1998 medical record indicates treatment for left foot pain, itching, cracking, and tenderness, with a diagnosis of tinea pedis. A February 2000 medical record indicates treatment for right foot pain. A March 2000 medical record indicates treatment for right foot pain, and the medical professional prescribed arch supports. A July 2000 medical record indicates follow-up treatment to the March 2000 foot treatment, and at that time the Veteran stated that his arch supports hurt his feet. Finally, within the Veteran's July 2019 VA Form 9 (Substantive Appeal to the Board), he asserted a theory that his right foot pes planus worsened due to his service-connected left knee meniscus tear with arthritis. At this point, no opinion has been obtained to determine whether the Veteran's right foot pes planus may be secondary to his service-connected left knee disability. In this case, there is sufficient evidence to determine whether the Veteran's right and left foot pes planus preexisted service, which will hopefully accelerate the case on remand. The Veteran's DD-214 indicates that he entered active service in March 1998. A January 1998 service medical examination is of record. The Board notes that the purpose of the examination is listed as being for the Reserve rather than enlistment. The examination was conducted two months prior to his entrance into active duty. The examiner listed the Veteran has having severe, asymptomatic pes planus with bulging of the inner borders and noted that the Veteran was granted a medical waiver. The Board finds that as the January 1998 service medical examination was conducted just prior to the Veteran's entry into service, it reasonably served as the Veteran's entrance examination. Thus, as his bilateral pes planus was noted on the examination, the Veteran may not be presumed sound with respect to his bilateral pes planus, instead the claim is properly one based on aggravation pursuant to 38 U.S.C. § 1153. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain an addendum opinion from the October 2018 VA-contracted examiner, or another appropriately qualified clinician if that examiner is unavailable, to provide an opinion addressing the onset and etiology of the Veteran's bilateral pes planus. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided. The examiner is asked to provide an opinion regarding the following: (a.) Whether it is at least as likely as not (50 percent probability or more) the Veteran's right foot pes planus, which preexisted service, and was described as "severe, asymptomatic," just prior to entry onto active duty, permanently worsened during his active military service to any degree? For this opinion, the examiner is informed that it is not necessary that his service caused the worsening, only that permanent worsening occurred in service. (b.) If you believe that the Veteran's right foot pes planus DID permanently worsen during his active military service, to what extent was such worsening due to the natural progression of the disease? Why do you say so? (a.) Whether it is at least as likely as not (50 percent probability or more) the Veteran's left foot pes planus, which preexisted service, and was described as "severe, asymptomatic" just prior to entry onto active duty, permanently worsened during his active military service to any degree? For this opinion, the examiner is informed that it is not necessary that his service caused the worsening, only that permanent worsening occurred in service. (b.) If you believe that the Veteran's left foot pes planus DID permanently worsen during his active military service, to what extent was such worsening due to the natural progression of the disease? Why do you say so? In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) A January 1998 Reserve Examination documenting "severe pes planus with bulging of inner boarders." (b.) A June 1998 in-service medical record documenting treatment for left foot pain, and a diagnosis of tinea pedis. (c.) A February 2000, in-service medical record documenting treatment for right foot pain. (d.) A March 2000 in-service medical record documenting right ankle/foot pain and a prescription for arch supports in each foot. (e.) A July 2000 in-service medical record documenting follow-up treatment for foot pain and the Veteran's statements that the arch supports hurt his feet. (f.) The January 2001 Separation Examination documenting feet issues, to include bilateral pes planus. (g.) The Veteran's lay statements in his July 2019 VA Form 9 that "my flatfoot issues were present and have gotten worse after military service." (h.) The Veteran's assertions within his January 2020 Appellate Brief that his "duties as a Food Service Handler required standing for long periods of time," which he asserts aggravated his bilateral pes planus. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his bilateral pes planus disability, including any evidence concerning continuity of symptomatology, as he is legally permitted to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of a bilateral pes planus in service or the assertion that an in-service event, injury, or illness led to his current bilateral pes planus. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.