Citation Nr: 18160336
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-14 792A
DATE:	December 28, 2018
REMANDED
Entitlement to service connection for a right foot condition to include pes planus, is remanded.
Entitlement to a rating in excess of 10 percent disabling for service-connected residuals of fracture, right ankle is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from July 1977 to January 1984. 
In the Veteran’s April 2015 substantive appeal (via VA Form 9) he indicated that he wanted a hearing before a Veterans Law Judge.  Furthermore, in a phone conversation in October 2018, the Veteran confirmed that he would be at the scheduled hearing on November 21, 2018.  However, the Veteran failed to appear for his scheduled hearing in November 2018.  The Veteran has not submitted a request to reschedule, therefore the Board finds the Veteran’s request for a hearing has been withdrawn.
Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.
Entitlement to service connection for a right foot condition to include pes planus, is remanded.
The Veteran contends that the pes planus noted on his January 1977 service entrance examination was aggravated beyond its natural progression by his active duty service or in the alternative by his service-connected right ankle condition. 
VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  For below noted reasons, the Board finds that a VA examination is needed in order to decide the Veteran’s claim.  
With regard to the Veteran’s claim for service connection for bilateral pes planus, the Veteran’s entrance examination noted pes planus.  However, there is no definitive evidence that the Veteran’s pre-existing pes planus had permanently worsened during service.  While post-service treatment records note pes planus, again there is no definitive evidence that the Veteran’s condition worsened.  In addition, as noted the Veteran has alleged that his service-connected right ankle condition aggravated his pre-existing right foot condition, to include pes planus.  The Board notes that the Veteran is service-connected for his right ankle condition, but that no VA examination has been conducted to determine whether the Veteran’s condition has been aggravated by either his active duty service or service-connected condition.  Therefore, on remand an examination and opinion which discusses the Veteran’s pre-existing pes planus and determines whether such was aggravated by his active duty service or his service-connected right ankle condition, should be obtained.
Entitlement to a rating in excess of 10 percent disabling for service-connected residuals of fracture, right ankle is remanded.
Relevant to the Veteran’s claim for an increased rating for his service-connected residuals of fracture, right ankle, the Court has held that, where the record does not adequately reveal the current state of claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination.  Allday v. Brown, 7 Vet. App. 517, 526 (1995).
The Board finds that the Veteran’s claim for an increased rating for his service-connected residuals of a right ankle fracture must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability.  In this regard, the record reflects that the Veteran was most recently afforded a VA examination in July 2012.  Since that time, the Veteran has noted an increase in the severity of his symptoms and alleges that a higher rating is warranted.  In light of the allegations of worsening symptoms and the amount of time which has passed since the Veteran’s prior examination, the Board finds that remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his residuals of a right ankle fracture.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
The Board finds that remand is also required so that range of motion testing can be conducted pursuant to a recent decision issued by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016).  The new examination should include specific findings regarding the Veteran’s range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.
Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. 
The matters are REMANDED for the following action:
1.  Obtain updated and any outstanding treatment records.
2.  After obtaining all outstanding records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected residuals of a right ankle fracture. 
Range of motion testing should be accomplished and reported for the Veteran’s right ankle in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
3.  The Veteran should be afforded an appropriate VA examination to determine whether the Veteran’s right foot condition, to include pre-existing pes planus was aggravated by his active duty service or service-connected disability. 
Following a review of the claims file, the examiner is asked to furnish an opinion with respect to the following questions:
(a)  Is it at least as likely as not (i.e., a 50 percent or greater probability) that the pre-existing pes planus permanently increased in severity beyond the natural progression during his period of active duty?
(b)  Is it at least as likely as not (i.e., a 50 percent or greater probability) that the pre-existing pes planus was permanently increased in severity beyond the natural progression by the Veteran’s service-connected right ankle condition?
The examiner is asked to provide a rationale for all opinions and conclusions reached.
 
JEREMY J. OLSEN
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Unger, Associate Counsel

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