Citation Nr: 0812818 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 04-18 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for status post acromioplasty, left shoulder. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hallux valgus. 3. Entitlement to a compensable evaluation for bilateral pes planus with corns and calluses prior to February 17, 2004. 4. Entitlement to an evaluation in excess of 10 percent for bilateral pes planus after February 17, 2004. 5. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran served on active duty from November 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2003, February 2005 and June 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran testified before the undersigned veterans law judge in March 2008. The issue of service connection for hallux valgus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed March 1998 rating decision, the RO denied service connection for status post acromioplasty left shoulder. 2. In an unappealed July 1983 rating decision, the RO denied service connection for hallux valgus. 3. The evidence received since the March 1998 rating decision is neither cumulative nor redundant of the evidence previously of record but does not raise a reasonable probability of substantiating the claim for service connection for status post acromioplasty left shoulder. 4. The evidence received since the July 1983 rating decision that denied service connection for hallux valgus is neither cumulative nor redundant and raises a reasonable probability of substantiating the claim. 5. Prior to February 17, 2004, bilateral pes planus was not productive of more than moderate impairment. 6. Since February 17, 2004, bilateral pes planus has not been productive of more than moderate impairment. 7. On March 4, 2008, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal for service connection for PTSD is requested. CONCLUSIONS OF LAW 1. The August 1984 rating decision that denied service connection for status post acromioplasty, left shoulder is final. 38 U.S.C. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1984). 2. The July 1983 rating decision that denied service connection for bilateral hallux valgus is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19,192 (1983). 3. New and material evidence has not been received to reopen the claims of entitlement to service connection for status post acromioplasty, left shoulder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for service connection for hallux valgus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 5. Prior to February 17, 2004, a 10 percent rating is warranted for bilateral pes planus with corns and calluses. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7., 4.10 4.40. 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2007). 6. After February 17, 2004, a rating in excess of 10 percent for bilateral pes planus is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7., 4.10 4.40. 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2007). 7. With regard to the issue of entitlement to service connection for PTSD, the criteria for withdrawal of a Substantive Appeal by the appellant have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Court has ruled that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. On March 31, 2006, the Court issued a decision in the appeal of Kent v. Nicholson, 20 Vet. App. 1 (2006), which held that VA must examine the basis for a denial of a previously disallowed claim and provide the veteran with notice of the evidence of service connection found lacking in the previous denial. Kent at 10. The Court recently held, that in increased compensation claims, section § 5103(a) requires the Secretary to notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, (2008). The Court also held that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. The Court held that a claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. This notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g. competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores at 43. A. Duty to Notify In a July 2003 letter, the RO notified the veteran of the evidence required to reopen the previously denied claims for service connection for a left shoulder condition and hallux valgus. The RO provided the veteran with VCAA notice regarding the claim of increased evaluation for pes planus in a November 2004 letter. Both of these letters advised the veteran of VA's duty to assist the veteran with the development of his claims and stated what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. These letters also advised the veteran to submit any relevant evidence in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. The July 2003 VCAA letter advised the veteran that new and material evidence was required to reopen the previously denied claims for service connection for left shoulder condition and bilateral shoulder injury. The July 2003 letter did not advise the veteran of the evidence found lacking in the previous denials of service connection. However, a November 2007 letter informed the veteran of the evidence that was previously found lacking in his service connection claims. The November 2007 letter also informed the veteran of the evidence necessary to establish a disability rating or effective date. The timing of this notice was defective because it was provided after the rating decision on appeal. In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the Court held that the issuance of a fully compliant VCAA notification followed by readjudication of the claim in an SSOC is sufficient to cure a timing defect. In this case, after the issuance of the fully compliant November 2007 notice letter, the claims were readjudicated in a January 2008 SSOC, thus curing any defect with respect to the timing of the VCAA notice was cured. In this case, the veteran was not provided with VCAA notice that satisfied the requirements outlined in Vazquez-Flores. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake at 48 (U.S. Vet. App. January 30, 2008) ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores at 46. In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication. Although the veteran was not provided with a VCAA notice letter prior to the initial rating decision that satisfied the requirements outlined in Vazquez-Flores v. Peake, the veteran received post-adjudicatory notice of the rating criteria pertaining to his disability in the July 2005 Statement of the Case and the January 2007 Supplemental Statement of the Case (SSOC). The SOC and SSOC's informed the veteran of the specific criteria for a higher rating under the pertinent diagnostic code. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). II. Analysis of Claims A. Claims to Reopen The veteran seeks to reopen claims of entitlement to service connection for status post acromioplasty, left shoulder and entitlement to service connection for hallux valgus. The RO previously denied the claim of entitlement to service connection for status post acromioplasty, left shoulder in a March 1998 rating decision. The RO's denial was based on a lack of evidence of service incurrence of a left shoulder condition. The RO informed the veteran of the rating decision and of his appellate rights with respect to the decision. The veteran did not perfect an appeal of the March 1998 rating decision, and it is final. 38 U.S.C. § 7104(b) (West 1991); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1984). The claim of entitlement to service connection for bilateral hallux valgus was previously denied in a July 1983 rating decision. The RO's denial was based on a lack of evidence of service incurrence of hallux valgus. The RO informed the veteran of the rating decision and of his appellate rights with respect to that decision. The veteran did not perfect an appeal of the July 1983 rating decision and it is final. 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19,192 (1983). The evidence considered in the July 1983 rating decision included service medical records and a report of a July 1983 VA examination. The veteran sought to reopen the claims for service connection for status post acromioplasty, left shoulder and service connection for bilateral hallux valgus in June 2003. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. 3.156 (a) (2007). The evidence that is considered to determine whether new and material evidence has been received is the evidence associated with the claims file since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence that has been received since the previous denials of service connection includes VA outpatient treatment records dated from 2002 to 2007, a report of a December 2004 and December 2006 VA foot examinations, statements submitted by the veteran and the transcript of the veteran's hearing before the Board. VA treatment records reflect a current diagnosis of mild hallux valgus with tenderness of the metatarsal phalangeal joints of both feet. The VA outpatient treatment records show ongoing complaints of and treatment for left shoulder pain. The evidence submitted since the prior final denial of service connection for a left shoulder condition is new, as it was not previously submitted to agency decisionmakers. However, the evidence submitted since the prior final denial is not material because it does not relate to an unestablished fact necessary to substantiate the claim. The RO based the previous denial of service connection upon a finding that the evidence did not show service incurrence of a left shoulder condition. The evidence that has been submitted since the prior final denial relates to the issue of the veteran's current complaints of chronic left shoulder pain. This evidence does not relate the veteran's current left shoulder pain to service and is therefore not material to the claim. The Board finds that the evidence that has been submitted since the prior final denial of service connection for hallux valgus is both new and material to this claim. The VA outpatient medical records and the reports of VA examinations contain demonstrate a current diagnosis of hallux valgus. At the hearing, the veteran testified that he had foot pain during service. In Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), the Court held that that the veteran was competent to testify to factual matters of which he had first-hand knowledge and, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), noted that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. This testimony is credible and is corroborated by service medical records which show treatment for foot pain. The previous denial of service connection for hallux valgus was predicated upon a finding that service medical records did not show treatment for this condition. The veteran's testimony regarding his in-service symptoms relates to the issue of service incurrence. Such evidence was lacking at the time of the prior final denial of service connection for hallux valgus. Having determined that new and material evidence has been received, the Board may reopen the claim of entitlement to service connection for hallux valgus. B. Increased Rating for Pes Planus Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial rating for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in the case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Pes planus is rated under Diagnostic Code 5276. A 10 percent requires evidence of moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet. Bilateral severe acquired flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities will result in the award of a 30 percent rating. An evaluation of 50 percent, the highest available under the diagnostic code, requires evidence of bilateral flatfoot with a pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation which is not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2007). 1. Prior to February 17, 2004 A non-compensable (zero percent) rating was in effect for pes planus prior to February 17, 2004. The veteran had a VA examination of the feet in February 1998. The VA examiner's diagnoses included bilateral pes planus, hallux valgus of 20 degrees on the right and 10 degrees on the left, corn formation with hammering the tips of the second, third and fourth toes of the right foot, corn formation PIP joint and the tip of the nail of the right little toe with callous formation on the plantar surface of the fifth metatarsophalangeal joint. The examiner indicated that there was no fixed deformity of the right foot and no deformity of the left foot. As noted previously, a compensable evaluation is warranted where the evidence shows A compensable evaluation of 10 percent requires evidence of moderate unilateral acquired flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet. Id. The February 1998 VA examination report indicates that the veteran experienced pain with manipulation and use of the feet. Based on this evidence, the Board finds that a 10 percent evaluation is warranted prior to February 17, 2004. A rating in excess of 10 percent is not warranted prior to February 17, 2004, as the evidence from this time period does not show severe symptomatology with symptoms such as accentuated pain on manipulation and use, swelling on use and characteristic callosities. 2. After February 17, 2004 A 10 percent rating is in effect as of February 17, 2004. A February 17, 2004 VA outpatient treatment record noted that the veteran complained of chronic foot pain. At a December 2004 VA examination, the veteran reported that he had pain in his feet that had worsened in the six months preceding the examination. The examiner's impression was pes planus grade 4 bilateral, moderate disability. The examiner noted bunion deformity of the first MP joints and hammertoe deformity of the second through fifth toes bilaterally. The examiner indicated that the veteran used special shoes but no other treatment. There was no evidence of painful motion, no edema, no weakness, no instability or tenderness. The examiner noted that the veteran could not stand on his feet for longer than 10 or 15 minutes. There was no evidence of abnormal weightbearing. There was no pain on manipulation of the feet. Upon VA examination in December 2006, the veteran's main complaints included painful calluses and pain in the first metatarsal phalangeal joint of each foot. On physical examination, the examiner noted that there was hallux valgus of both feet measuring 23 degrees. There was tenderness of the first metatarsal phalangeal joint of each foot. There was a small bunion deformity of the MTP joint. There was no swelling or deformity or edema of either foot. There were tender, hard calluses of both feet on the fifth metatarsal head on the plantar surface and on the medial side of the first metatarsal head. There was generalized mild tenderness to palpation and manipulation of the toes, midfoot and hindfoot bilaterally. There were hammertoe deformities of all of the lesser toes of both feet. The examiner stated that, in the standing position, the veteran could be seen to have moderate pes planus with some remaining arch of each foot. The examiner noted that the veteran was wearing extra-depth soft shoes with cushioned soles and a custom cushioned insert. There was no apparent abnormal wear on the shoes. The examiner noted that the veteran's overall walking distance was limited by foot pain. The veteran testified regarding the foot condition at his hearing. He testified that he has pain and swelling in his feet and that he has calluses. Based on the evidence discussed above, the Board finds that a rating in excess of 10 percent is not warranted for the time period after November 17, 2004. The evidence does not show that the veteran's pes planus disability is severe, with such manifestations as objective evidence of marked deformity, pain on manipulation and use accentuated, swelling on use and characteristic callosities. The 2004 and 2006 VA examinations found no swelling or deformity of the feet. The 2004 VA examination found no pain on manipulation of the feet. The 2006 VA examination noted generalized mild tenderness to palpation and manipulation of the toes, midfoot and hindfoot bilaterally. The VA physician who examined the veteran in 2006 characterized his condition as "moderate." Such findings do not more nearly approximate the criteria for a 30 percent rating which, as noted above, requires evidence of severe pes planus, with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. The Board has also considered whether referral for an extraschedular rating is appropriate. However, there is no evidence in this instance that the rating criteria are inadequate to evaluate the veteran's service-connected pes planus. There is no evidence that this disability, alone, cause marked interference with employment (beyond that contemplated in the evaluation assigned) or necessitates frequent periods of hospitalization. Accordingly, the veteran's claims do not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and the Board is not required to remand these claims to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007). See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). C. PTSD Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). The appellant has withdrawn the appeal of the issue of entitlement to service connection for PTSD. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER New and material evidence not having been received, the claim of entitlement to service connection for status post acromioplasty, left shoulder, is not reopened. New and material having been received, the claim of entitlement to service connection for bilateral hallux valgus is not reopened. A 10 percent rating for bilateral pes planus is granted prior to February 17, 2004, subject to regulations governing the payment of monetary benefits. After February 17, 2004, a rating in excess of 10 percent for bilateral pes planus is denied. The appeal with regard to the issue of entitlement to service connection for PTSD is dismissed. REMAND Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2007); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that, pursuant to 38 U.S.C.A. § 1110 and § 3.310(a), when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation). The duty to assist requires VA to provide a medical examination or obtain a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1) (West 2002). An examination or medical opinion is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, a VA examination is necessary to decide the claim of service connection for hallux valgus. Service medical records show that the veteran complained of foot pain during service. The veteran was seen in December 1977 with complaints of foot pain of three days in duration. Callosities on the veteran's feet were noted. Service connection is currently in effect for bilateral pes planus with corns and callosities. A VA examination is necessary to determine whether the veteran currently has hallux valgus that is related to service or to a service- connected disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for a VA foot examination. The claims file should be made available to the VA examiner prior to the examination. The examiner should indicate in the examination report that the claims file was reviewed. 2. The examiner is asked to diagnose any disabilities of the feet. If hallux valgus is present, the examiner is asked to answer the following questions: a. Is hallux valgus more likely than not (50 percent or greater likelihood) related to foot pain that was noted during service? The examiner should provide a detailed rationale for the opinion. b. Is hallux valgus proximately due to, or the result of, service- connected bilateral pes planus? The examiner should provide a detailed rationale for the opinion. 3. Thereafter, the RO should readjudicate the claim on appeal based on all of the evidence of record. If the disposition of the claim remains unfavorable, the RO should furnish the veteran a supplemental statement of the case and afford them an applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters 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 Supp. 2007). ______________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs