Citation Nr: 25003772 Decision Date: 03/19/25 Archive Date: 03/19/25 DOCKET NO. 18-38 649A DATE: March 19, 2025 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral pes planus, prior to September 12, 2022, is remanded. Entitlement to a rating in excess of 30 percent for bilateral pes planus, as of September 12, 2022, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to May 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2015 and June 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In March 2022, the Board remanded the claim for development. In October 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. A February 2023 Board decision denied service connection for a back disability and denied increased ratings for bilateral pes planus. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. In a June 2024 Memorandum Decision, the Court vacated the February 2023 Board decision and remanded the matter to the Board for action consistent with the Memorandum. The Board finds that there has not been substantial compliance with the March 2022 remand requests. Therefore, this appeal must again be remanded. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a back disability is remanded. The Veteran asserts entitlement to service connection for a low back disability that the Veteran asserts was caused or aggravated by service or service-connected pes planus. A March 2022 Board remand indicated that the record showed a potential back disability diagnosis and requested a VA examination to address any relationship between any back disability and service or service-connected pes planus. In response to the Board's remand request, the RO scheduled the Veteran for a VA examination in September 2022. A May 2016 VA treatment record indicated a medical impression of transitional anatomy of the lumbar spine with sacralization at L5 with hypoplastic twelfth ribs. A January 2021 VA treatment record indicated that that if improvement was not shown in the Veteran's symptomatology, then X-rays of the lumber spine should be considered. An April 2021 VA treatment record indicated that the Veteran may have a lumbar disc herniation. At an October 2021 hearing the Veteran described chronic back pain and symptoms that included severe flare-ups that required the Veteran to stay in bed for one to two days, multiple times per year. The Veteran stated that a back brace was occasionally worn due to back pain. The Veteran also testified that treatment for neuropathy was provided by a VA facility in Houston, Texas, in addition to treatment for back pain that was provided by a private doctor 22 years ago. In a September 2022 VA thoracolumbar spine examination, the Veteran described low back pain and related symptomatology that began the 1980s. The report noted that the Veteran had never had diagnostic imaging or physical therapy related to the back condition. The examiner did not diagnose a back disability and did not provide an etiology opinion. The report noted that diagnostic imaging was not performed related to the VA examination. The Board finds the September 2022 opinion is incomplete and inadequate. The examiner did not substantially comply with the March 2022 Board remand request. The examiner did not address the relevant medical and lay evidence of record, to include the October 2021 hearing testimony, VA treatment records that indicated a possible lumbar disc herniation, and the Veteran's lay statements regarding an extensive history of back pain and related symptomatology. The VA treatment records indicated that X-rays should have been considered if the Veteran's symptomatology persisted. However, X-rays were not performed at the September 2022 VA examination that may have provided relevant information related to the Veteran's back condition and the examiner did not address why diagnostic imaging was not performed. It remains unclear to the Board whether the Veteran has a back disability during the period appeal. Therefore, remand is warranted for an adequate medical examination and etiology opinion that fully addresses the medical and lay evidence of record and substantially complies with the Board's March 2022 remand request. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate or incomplete VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Additionally, the October 2021 hearing testimony shows that the Veteran reported treatment at a VA facility in Houston, Texas, in addition to treatment provided by a private doctor. The record shows that VA treatment records after September 5, 2023, have not been associated with the claims file. On remand, the RO should attempt to obtain any VA and non-VA treatment records that are not already of record and may be relevant to the claim. It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, if needed, without good cause, may include denial of the claim. 38 C.F.R. § 3.655 Accordingly, the Board finds that remand is again required to obtain adequate VA examination and etiology opinion. 2. Entitlement to an initial rating in excess of 10% for bilateral pes planus, prior to September 12, 2022, is remanded. 3. Entitlement to a rating in excess of 30 percent for bilateral pes planus, as of September 12, 2022, is remanded. The Veteran is currently assigned an initial 10 percent rating for bilateral pes planus, as of May 14, 2015, and is assigned a 30 percent rating as of September 12, 2022, pursuant to Diagnostic Code 5276. The Veteran asserts that the bilateral pes planus disability was worse than contemplated by the assigned ratings and asserts that higher ratings are warranted for the period on appeal. A March 2022 Board remand requested a current VA examination to assess the severity, manifestations, and symptomatology of the bilateral pes planus disability. In response to the Board's remand request, the RO scheduled the Veteran for a VA examination in September 2022 At an October 2021 Board hearing, the Veteran testified that bilateral foot pain significantly increased in severity with symptoms that included an inability to walk and the occasional use of a cane. The Veteran testified that medication was prescribed to help regain the damaged nerves in both feet and described pain that radiated up the back of both legs. The Veteran also testified that both feet had high arches and possibly pes cavus. The Veteran testified that his feet were not flat. In a September 2022 VA foot examination, the examiner diagnosed bilateral pes planus. The report indicated that the Veteran described bilateral foot pain that increased with prolonged walking. The examiner reported that the Veteran experienced pain on the use of both feet with pain on accentuated use and pain on manipulation. However, the examiner also reported that the Veteran did not experience flare-ups or functional loss. The examiner noted that there was no functional loss due to bilateral foot pain and reasoned that the Veteran was able to walk. The report indicated that there was no pain on active or passive motion, weight-bearing, nonweight-bearing, or with rest or non-movement. The examiner did not complete multiple sections of the report, to include the section that addressed acquired pes cavus. The report noted that diagnostic imaging was not performed. The Board finds that September 2022 VA foot conditions examination is incomplete for rating purposes. The examination report included self-contained inconsistencies and did not fully address the Veteran's reported symptomatology, to include severe flare-ups that impaired the ability to walk. Additionally, the Veteran testified at the October 2021 hearing that both feet have high arches and are not flat, which may indicate either a progression of service-connected pes planus disability or a separate pes cavus diagnosis, which is an unresolved medical question that was not addressed in the examination report and requires further clarification. Therefore, the RO should schedule the Veteran for the appropriate VA examination to properly assess the current severity, manifestations, and symptomatology of the service-connected bilateral pes planus disability and obtain a retrospective opinion that fully addresses the relevant evidence of record during the entire period on appeal. Remand is warranted for an adequate medical examination and retrospective opinion that fully addresses the medical and lay evidence of record and substantially complies with the Board's March 2022 remand request. The Board notes that the VA has a statutory duty to assist the Veteran that includes the duty to conduct a thorough and contemporaneous examination, so that the rating of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate or incomplete VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board notes that the musculoskeletal regulations were amended effective February 7, 2021. However, there were no changes to the amended regulations for rating pes planus or flatfoot under Diagnostic Code 5276. It is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination, if needed, without good cause, may include denial of the claim. 38 C.F.R. § 3.655. Accordingly, the Board finds that remand is again required to obtain an adequate VA examination and retrospective opinion. The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for the back and bilateral foot disabilities. After securing any necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records, to include any VA records after August 2023, to include treatment in Houston, Texas. All attempts to obtain records must be documented in the claims folder. 2. Then, schedule the Veteran for a VA examination with a medical doctor, if possible with a specialty in orthopedics, to obtain an etiology opinion regarding any back disability. Ensure the examination scheduling notice is sent to the Veteran and the representative. Associate a copy of the scheduling notice with the claims file. The examiner must review the claims file, to include all Board Remands, and note that review in the report. The examiner should: (a.) Confirm the examiner is a medical doctor, if possible with a specialty in orthopedics, who has not previously examined the Veteran or provided an opinion in conjunction with this claim. (b.) Diagnose all back disabilities found on examination or shown in the record during the pendency of the appeal. Pain resulting in functional limitation can constitute a disability for VA compensation purposes. (c.) Opine whether it is as likely as not that any back disability is etiologically related to active service or any event, disease, or injury during service; or was noted during service with continuity of the same symptomatology since service. The examiner must specifically discuss any continuity of symptomatology for back pain. The examiner must consider the Veteran's lay statements regarding symptoms during and since service. If there is another more likely etiology for any current back condition, the examiner should so state and should explain why the other etiology is more likely. The?examiner should cite to any service medical records that indicate treatment in service for?any back disability. (d.) Opine whether it is as likely as not that any back disability manifested as arthritis within one year after separation from active service. (e.) Opine whether it is as likely as not that any back disability is due to, caused by, or the result of service-connected pes planus \, or any altered gait caused by pes planus. (f.) Opine whether it is as likely as not that any back disability, has been aggravated (increased in severity) by service-connected pes planus or any altered gait caused by pes planus. (g.) The examiner should discuss the history of the symptomatology and medications used to treat any back condition, to include prescription and over-the-counter medications. The examiner must address the October 2021 hearing testimony, in addition to the May 2016, January 2021, and April 2021 VA treatment records that show the Veteran complained of and was treated for a back condition and may have a disc herniation. (h.) The lay reports of symptoms during and since service should be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason. (i.) Reconcile the opinion with the findings and conclusions in all prior medical opinions, and all relevant VA and private treatment records. (j.) The examiner cannot base the opinion solely on any lack of treatment, diagnosis, or complaints in service. (k.) All indicated tests and studies should be performed, to include X-rays, and the findings reported in detail. The examiner should provide a clear explanation if any indicated testing is unable to be completed or if the examiner concludes that testing is not required. (l.) Any opinion expressed should be accompanied by a complete rationale with references to the record, diagnostic tests, and medical literature. 3. Schedule the Veteran for a VA examination with an examiner who has not previously examined the Veteran in conjunction with this claim, regarding the severity and manifestations of service-connected bilateral pes planus disability, in addition to obtaining a retrospective opinion for the entire period on appeal. Ensure the examination scheduling notice is sent to the Veteran and the representative. Associated a copy of the scheduling notice with the claims file. The examiner must review the claims file, to include all Board Remands, and should note that review in the report. The examiner should: (a.) Confirm the examiner has not previously examined the Veteran or provided an opinion in conjunction with this claim. (b.) Diagnose and provide a full description of any foot disability, to include service-connected bilateral pes planus. The examiner should include all signs symptoms necessary for rating the disability under the rating criteria. All tests deemed necessary should be performed and the results reported in detail. The examiner should provide a clear explanation if any indicated testing is unable to be completed or if the examiner concludes that testing is not required. The examiner should specifically state whether or not a diagnosis of pes cavus is appropriate. (c.) If any foot disabilities, other than service-connected pes planus are diagnosed, the examiner should provide an opinion as to whether each diagnosed foot disability is as likely as not related to service, or as likely not caused by or aggravated (increased in severity) by the service-connected pes planus disability. (d.) The examiner must address the Veteran's October 2021 hearing testimony that he does not have flat feet and has high arches. The examiner must address and opine whether the Veteran's high arches are a progression of service-connected pes planus disability or whether a separate diagnosis if warranted. A complete rationale must be provided. (e.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of any functional impairment during flare-ups related to service-connected bilateral pes planus. (f.) The examiner is asked to provide an additional retrospective opinion regarding the severity of the service-connected bilateral pes planus for the entire period on appeal. Diagnose and provide a full description of the disability, to include all signs symptoms necessary for rating the disability under the rating criteria. The examiner should provide the approximate dates of changes in the severity and manifestations of service-connected pes planus disability during the period on appeal, if ascertainable. The examiner should reconcile those findings with the findings in the VA examinations of record and provide a complete rationale for all conclusions reached. (g.) The examiner must consider and address the Veteran's lay statements, regarding worsening symptoms, to include October 2021 hearing testimony and statements made in the medical record and prior VA examinations. A complete rationale for all conclusions reached must be provided. (h.) Any opinion expressed should be accompanied by a complete rationale with references to the record, lay statements, diagnostic tests, and medical literature. The examiner must reconcile the opinion with prior opinions of record. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Malec, Jennifer L. 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.