Citation Nr: 23027299 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 14-31 517A DATE: May 8, 2023 REMANDED Entitlement to service connection for flat feet (pes planus) is remanded. REASONS FOR REMAND The Veteran served from February 1975 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) VA Regional Office (RO) in Columbia, South Carolina. This appeal has a lengthy procedural history, but was most recently before the Board in July 2021, when service connection for flat feet was denied. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated December 2022, the Court vacated the Board's July 2021 decision and remanded the matter to the Board for compliance with the instructions included in the December 2022 Joint Motion for Remand (JMR) by the parties. In April 2018, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer at the Board. A transcript of that hearing is of record. In January 2023, the Board informed the Veteran (and his representative) that he had the option to have another hearing before a Veterans Law Judge who would participate in any decision made on his appeal. The Veteran did not respond; therefore, the Board will proceed with adjudicating the appeal. Entitlement to service connection for flat feet (pes planus) is remanded. The examiner in the March 2021 VA examination opined that "it is less likely than not (less than 50 percent probability) that the Veteran's pes planus is proximately due or aggravated beyond its natural progression by his service-connected left ankle condition." Further, on the issue of aggravation, the examiner opined that "probative evidence indicates no aggravation of pes planus by his left ankle condition while on active duty because his separation physical was normal regarding the foot." The examiner did not explain why the left ankle did not aggravate the Veteran's flat feet post service. In regard to post-service symptomatology, the examiner only addressed causation and correlation, stating that the "cause-effect relationship between pes planus and ankle arthritis has not been established by preponderance of the medical literature" and "documented correlation between service-connected left ankle disability and development of pes planus after service is lacking." The JMR indicates that the Board erred when it failed to ensure that VA satisfied its duty to assist. Specifically, the March 2021 VA examination failed to adequately address secondary service connection through aggravation. Therefore, remand is required to obtain a VA examination or opinion that adequately addresses aggravation. The Board has no discretion and must remand the appeal for compliance with the Court's September 2022 Order granting the Joint Motion for Remand. Stegall v. West, 11 Vet. App. 268 (1998); Forcier v. Nicholson, 19 Vet. App. 414 (2006) (duty to ensure compliance with the Court's order extends to the terms of agreement struck by Parties that forms basis of Joint Motion for Remand). When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of the terms of the JMR, the Board concludes that another opinion is needed. The matter is REMANDED for the following action: Schedule the Veteran for a new VA examination for his current flatfeet (pes planus). The entire claims file, including a copy of the Remand, must be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations must be accomplished, and all clinical findings must be reported in detail. An explanation must be given for all opinions and conclusions rendered. The examiner is asked to provide responses to the following: (a.) Was flat feet (pes planus) at least as likely as not related to service? Given the medical evidence in this case, your experience and knowledge, and the state of medical science, is the Veteran's account of his flat feet (pes planus) condition consistent with the clinical findings? Please fully explain your opinion. (b.) Is flat feet (pes planus) at least as likely as not proximately due to the Veteran's service-connected left ankle disability? (c.) Is flat feet at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected left ankle disability? If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to nature, severity, and frequency of his observable symptoms over time. A. Dean Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board KMMH 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.