Citation Nr: 22057930 Decision Date: 10/14/22 Archive Date: 10/14/22 DOCKET NO. 19-06 455 DATE: October 14, 2022 ISSUE Entitlement to service connection for bilateral pes planus with hammertoes. REMANDED Entitlement to service connection for bilateral pes planus with hammertoes is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021 the Veteran testified before the undersigned Veterans Law Judge in a video conference Board hearing. A transcript of the testimony offered at the hearing has been associated with the record. The Board remanded this matter in February 2022 for further development. For the reasons explained below the Board finds that this matter must be remanded again. Entitlement to service connection for bilateral pes planus with hammertoes is remanded. The Veteran claims that although both his bilateral pes planus and hammertoe disabilities pre-existed service they were aggravated beyond their natural progression during service due to strenuous activities he participated in which were related to his duties for his Military Occupational Specialty (MOS) as a supply specialist in a warehouse. The Veteran's medical records indicate that his bilateral pes planus existed prior to service. On his June 1972 enlistment examination there is a notation for pes planus, which was not considered disabling. The enlistment examination made no mention of hammertoes. The Veteran was afforded a VA foot examination in July 2010. The examiner noted that while the Veteran reported that he did have problems with his feet prior to service, there was no documented treatment for pes planus or any other foot condition while in service. At that time the examiner opined that it was unlikely that the bilateral pes planus was permanently aggravated by service. The examiner also opined that it was unlikely that the Veteran's hammertoes were caused by or permanently aggravated by service. During the September 2021 Board hearing the Veteran testified that both his pes planus and his hammertoes pre-existed his active-duty service. He also testified that both of these disabilities manifested and worsened during active-duty service. Specifically, the Veteran testified that while in service one of his duties included loading and unloading a milk truck and that this activity was strenuous and caused issues with his feet. He testified that while in service he noticed that his feet hurt more often, and that the pain would begin to go up his legs. He also testified he would self-treat his feet by soaking them often. In consideration of the above, when this matter was last before the Board in February 2022, it was remanded in order to afford the Veteran a new VA examination to assess the nature and etiology of his claimed bilateral pes planus and hammertoe disabilities. In compliance with the Board's February 2022 remand directives, the AOJ scheduled the Veteran for a VA foot examination on March 22, 2022, and the Veteran was notified by letter of the examination on March 14, 2022. The record shows that on March 18, 2022 the Veteran contacted VA by telephone and stated that he was unable to make the scheduled examination as he was wheelchair bound and did not have transportation. In the call the Veteran requested that VA reschedule the examination and make provisions for transportation to the new examination. There is no indication in the record that this request was addressed by the AOJ. The AOJ scheduled a new foot VA examination for April 22, 2022 and notified the Veteran by letter on April 3, 2022. The Veteran did not attend the scheduled VA examination. A third VA foot examination was scheduled for June 13, 2022. The Veteran did not attend the VA examination. In a July 2022 statement in support of the claim, the Veteran's representative indicated that the Veteran was not notified of the June 2022 examination. Indeed, the Board notes that the record is silent for notification or attempts to contact the Veteran regarding the June 2022 examination. Here, as the Veteran had not received notification of the June 2022 examination, along with the fact that the Veteran had previously notified VA of his request for transportation and his willingness to report to rescheduled examinations, the Board thus finds that good cause has been shown and that the rescheduling of a VA examination is appropriate to decide the Veteran's claims. See Clark v. Principi, 15 Vet. App. 61, 63 (2001); Fluker v. Brown, 5. Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. 2. Schedule the Veteran for the appropriate VA examination(s) to determine the nature and etiology of the Veteran's bilateral pes planus and hammertoe disabilities. In scheduling the examination, the AOJ should consider the Veteran's transportation needs, as appropriate. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should opine to the following for the bilateral pes planus: a) Is it approximately as least as likely as not that the pre-existing bilateral pes planus disability underwent any worsening (i.e., increase in severity) during service? b) If so, is there clear and unmistakable evidence (undebatable) that such worsening of the pre-existing pes planus disability during service was due to the natural progress of the disease? As it relates to the hammertoe disability, the examiner should opine on the following: a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran's hammertoes, diagnosed during the appeal period, pre-existed service? b) If so, is there clear and unmistakable evidence that the pre-existing hammertoes was NOT aggravated by service beyond the natural progress of the disease? c) If there is not clear and unmistakable evidence both that the Veteran's hammertoes preexisted service and was NOT aggravated by service then the Veteran must be considered to have been sound at entry without a diagnosis of hammertoes. Based upon that premise, is it approximately at least as likely as not that the Veteran's hammertoes had its onset during active service or is related to any in-service injury, event, or disease, including related to his duties while loading and unloading the milk truck while in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. In offering these opinions, the examiner is asked to address and discuss the Veteran's credible September 2021 Board hearing testimony that he did have bilateral pes planus and hammertoes which existed prior to service and underwent worsening during such service. Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood. A pre-existing 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. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 3. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative with a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.