Citation Nr: 1648548	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  11-18 239	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for pes planus (claimed a left foot disorder).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel







INTRODUCTION

The Veteran had periods of active duty in the U.S. Army from January 1977 to
January 1980, November 1980 to November 1984, and from November 2003 to
October 2004.  He also had extensive reserve duty.

This appeal to the Board of Veterans' Appeals (Board) is from a September 2009
rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran had requested a Board hearing, but did not appear for that proceeding scheduled for June 2013.

The Board remanded this case in January 2016.  Claims on appeal for service connection for low back, dermatological and headache disorders were later granted by the Regional Office.  Also granted, service connection for fracture of the first left metatarsal status post fusion with hallus rigidus and spurring.  The only claim that remains is the claim for service connection for pes planus, denied by the RO by June 2016 Supplemental Statement of the Case (SSOC).    

The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The March 2016 examination (and addendum opinion) does not clarify whether:  (1) the Veteran currently has the condition of pes planus; or (2) pes planus which pre-existed a period of active service was aggravated therein.  On the aggravation question the examiner could not locate evidence of pre-existing pes planus, but the record indeed shows this.  A supplemental opinion will be obtained. 

Accordingly, the case is REMANDED for the following action:

1. Request that the VA examiner who conducted the March 2016 podiatric examination provide another supplemental opinion.  The opinion should initially clarify whether the Veteran presented with the diagnosis of pes planus on prior VA examination.  If so, then the examiner should again determine whether there is clear and unmistakable evidence (this meaning obvious, manifest or undebatable) that the pes planus pre-existed any period of active duty service (i.e., January 1977 to January 1980, November 1980 to November 1984, or November 2003 to October 2004).  For purpose of substantiating that the Veteran had a definitive diagnosis of pes planus pre-existing a period of active service, the examiner is referred to the electronic record within the Veterans Benefits Management System (VBMS) entry dated October 24, 2006 -- regarding a July 1991 in-service examination for purpose of enlistment in the Army Reserve; and January 1999 enlistment examination for the National Guard.

If the pes planus pre-existed service, the examiner should render an opinion as to whether there is clear and unmistakable evidence that it was not aggravated in service beyond the natural progression of the condition.

If the pes planus is determined not have pre-exited service, the examiner should render an opinion as whether          pes planus at least as likely as not (50 percent or greater probability) was incurred in service.

A fully reasoned opinion rationale is requested for purpose of addressing these inquiries.   

If the examiner is not available, then obtain reexamination that addresses the inquiries set forth. 

2. Review the claims file. If any directive specified in this remand has not been implemented, take appropriate corrective action before readjudication.  Stegall v. West, 11 Vet. App. 268 (1998).

3. Then readjudicate the claim on appeal in light of all additional evidence received.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).


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