Citation Nr: 22015294 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 12-28 621 DATE: March 17, 2022 REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a skin disorder of the back and chest is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1994 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before a Veterans Law Judge in May 2018 who is now retired. The hearing transcript is of record. In October 2021, a letter was sent to the Veteran asking whether he would like a new hearing. No response from the Veteran was received. Therefore, in the December 2021 decision, the Board found that he declined to have another hearing. The Board remanded the issues for further development in August 2018, July 2020 and December 2021. The Board remanded the appeal in December 2021 in order for the RO to prepare a Supplemental Statement of the Case (SSOC) to include the review of evidence received subsequent to the prior SSOC. The Board finds that the December 2021 remand directive was satisfactorily completed. Entitlement to service connection for bilateral pes planus is remanded. The Veteran seeks entitlement to service connection for bilateral pes planus. This disability was noted upon entry to service. Thus, the issue is whether the Veteran is entitled to service connection due to aggravation of his bilateral pes planus beyond its natural progression by his active service. At the May 2018 Board hearing, the Veteran testified that as an in-service warehouse worker, he spent a considerable time walking on concrete floors and that he also participated in a lot of "high loaded" activities, such as running many miles several times per week, to include on rugged terrain, wearing heavy gear and artillery. He testified that such in-service activities aggravated his feet disability and that he had swollen feet in the morning after training. He also testified that he had no arch in-service and that it continued to post discharge to the present. Pursuant to the July 2020 Board Remand, the RO obtained a VA addendum opinion in January 2021. The examiner opined that the Veteran's preexisting pes planus was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. As rationale, the examiner stated that there was a lack of in-service objective measurements showing worsening of the bilateral pes planus, and that objective measurements are necessary to show an abnormal progression beyond the expected worsening occurred. He also commented on the lack of evidence of in-service treatment for any flare-ups of bilateral pes planus. He concluded that, due to such lack of evidence, there were "no findings" suggesting an unnatural aggravation or progression of the Veteran's bilateral pe planus. Thus, this opinion is inadequate because the examiner impermissibly relied upon an absence of medical evidence, failed to acknowledge the Veteran's lay statements regarding in-service injuries to his feet as described above, and recorded the aggravation opinion under the direct opinion portion of the examination report, which is incorrect. As such, the record does not contain a medical opinion that is sufficient to adjudicate the matter and the appeal must be remanded, once again, because the RO did not comply with the Board's prior remand directive to obtain an adequate medical examination. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a skin disorder of the chest and back is remanded. The Veteran seeks entitlement to service connection for a skin disorder of the back and chest on a direct incurrence basis. At the May 2018 Board hearing, he testified that during service, he got a rash on his back and chest and that he believed that it was due to training for approximately three months in excessive heat and direct sun. The January 2020 VA examination reflects that the Veteran has post inflammatory hyperpigmentation. In July 2020, the Board remanded the appeal for an addendum opinion and, if necessary, a new examination. A December 2020 VA examiner opined that the Veteran's skin disability is not due to or the result of his service. As rationale, the examiner stated that it is "completely impossible" to determine why the Veteran developed inflammation without completely speculating. The examiner did not say why he could not form an opinion without resorting to speculation. If a nexus opinion cannot be reached without speculation, then the examiner must explain why any opinion would be speculative. Thus, the record does not contain a medical opinion that is sufficient to adjudicate the matter and the appeal must be remanded again because the RO did not comply with the Board's prior remand directive to obtain an adequate medical examination. See Stegall. The matters are REMANDED for the following action: 1. Update the Veteran's VA treatment records. 2. Obtain an addendum opinion as to whether the Veteran's back and chest skin disorder onset during service or is otherwise related to an in-service injury, event, or disease, to include exposure to sun and heat. The need for an in-person examination, or in the alternative, a virtual option, to include a telehealth interview or examination, is left to the discretion of the examiner. The examiner is asked to provide a response to the following: Did the back and chest skin disorder onset during service or is it otherwise related to an in-service injury, event, or disease, to include exposure to sun and heat? A complete rationale for the opinion is required. If an opinion cannot be offered without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. , The Veteran is presumed credible for the limited purposes of the request herein. The examiner is informed that a positive opinion indicating a nexus to service does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus to service, the examiner should make a determination favorable to the Veteran. 3. Obtain an addendum opinion from an appropriate clinician for the Veteran's bilateral pes planus disability. The need for an in-person examination, or in the alternative, virtual options, to include telehealth interviews or examinations, is left to the discretion of the examiner. The examiner is asked to provide a response to the following: Did the Veteran's bilateral pes planus condition, which preexisted entry to active service, worsen in service, and, if so, is it clear and unmistakable (i.e., obvious and manifest) that it was not aggravated by service? In other words, is it clear and unmistakable that any worsening of the Veteran's bilateral pes planus during service was due to the natural progression of the disability? All opinions should be based on a review of all evidence of record and supported by adequate rationale. The Veteran is presumed credible for the limited purposes of the request herein. The examiner is informed that a positive opinion indicating a worsening in service beyond natural progression does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against such a finding, the examiner should make a determination favorable to the Veteran. A complete rationale for the opinion is required. If an opinion cannot be offered without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.