Citation Nr: 0814565 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-32 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for right ankle disability. 2. Whether new and material evidence has been received to reopen a claim for service connection for pes planus. 3. Entitlement to an effective date earlier than October 12, 2004, for the award of a 50 percent evaluation for major depression with co-diagnosis of post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and father ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The veteran served on active duty from June 1989 to October 1990, from October 1993, to May 12, 1994, and from July 1994 to October 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Hartford, Connecticut, Department of Veterans Affairs (VA) Regional Office (RO). In October 2007, the veteran and her father testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. She submitted additional evidence at the hearing along with a waiver, which will allow the Board to consider the evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2007). A further addendum by the appellant has also been submitted with a similar waiver. The issue of entitlement to an effective date earlier than October 12, 2004, for the award of a 50 percent evaluation for major depression with co-diagnosis of post-traumatic stress disorder 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. Service connection for right ankle disability was denied in an August 2001 rating decision. The RO noted she had injured her right ankle in service, but that she had failed to bring forth evidence of any permanent residual or chronic disability as a result of the injury. The veteran was notified of the decision, including the appeal rights, and she did not appeal the decision. 2. The evidence received since the August 2001 rating decision is cumulative and redundant of evidence of record at the time of the August 2001 decision and does not raise a reasonable possibility of substantiating the claim. 3. Service connection for bilateral pes planus was denied in a March 1998 rating decision. The RO noted that bilateral pes planus had been noted at entry and that there was no evidence that the condition had been permanently aggravated by service. The veteran was notified of the decision, including the appeal rights, and she did not appeal the decision. 4. Evidence has been associated with the claims file which provides a medical opinion that pes planus was aggravated during the veteran's service, which, when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim. 5. Bilateral pes planus existed prior to service. 6. The preponderance of the evidence is against a finding that bilateral pes planus was permanently made worse during any period of service. CONCLUSIONS OF LAW 1. The August 2001 rating decision, which denied service connection for right ankle disability, is final; the evidence received is not new and material, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2007). 2. The March 1998 rating decision, which denied service connection for bilateral pes planus, is final; the evidence received is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2007). 3. Bilateral pes planus was not aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007) defines VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). The notice requirements of the VCAA require VA to notify the veteran of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence the claimant is responsible for providing. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. VA advised the veteran of some of the essential elements of the VCAA in a March 2005 letter. VA informed the veteran that it was responsible for obtaining relevant evidence held by any federal agency and that it would make reasonable efforts to obtain any relevant records not held by a federal agency. It also requested that the veteran submit any evidence in her possession that pertained to the claim. As to informing the veteran of the evidence necessary to substantiate the claim, VA's letter does not fully comply with the holding in Kent v. Nicholson, 20 Vet. App. 1 (2006) (addressing requirements of VCAA notice in claims that have been previously denied). In the letter, VA noted that the claim for service connection for pes planus and right ankle disability had been denied previously and that the veteran would need to submit new and material evidence to reopen the claims. It provided the veteran with the definition of "new and material evidence." VA, however, failed to inform the veteran of what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denials. Rather, it merely stated that her claim had been denied because service connected had not been shown without specifying the elements that had been insufficient at the time of the prior denials. Because the Board is reopening the claim for service connection for bilateral pes planus, the Kent failure is not prejudicial because the veteran has succeeded in reopening the claim. As to the claim involving the right ankle, the Board finds that the veteran has not been prejudiced by VA's failure to tell the veteran of what evidence would be necessary to substantiate that element required to establish service connection that was insufficient at the time for several reasons. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). First, the veteran received a copy of the August 2001 rating decision. In that rating decision, the RO stated there was no evidence that showed the veteran had "any permanent residual or chronic disability as a result of [the] service[-]related injury." Thus, she was told there was a lack of evidence of current disability. The veteran alleges in this appeal that she has a current right ankle disability. Thus, her argument would establish that she is aware that she needs to show she has a current disability. Second, the January 2007 statement of the case explained to the veteran why her claim had been denied previously and what evidence would be necessary to establish service connection. Specifically, the Decision Review Officer stated that at the time of the prior denial, there was a lack of evidence of current right ankle disability. He then described the evidence that had been received since the August 2001 rating decision and stated that, "[N]one of it contains specific evidence of current residuals of a right ankle injury." He then stated that the claim could not be reopened. After this statement of the case, the veteran was able to present additional evidence and testimony before the undersigned Veterans Law Judge. It is for these reasons that the Board does not find that the veteran has been prejudiced by VA's failure to provide her with this information in connection with his application to reopen prior to initial consideration of her claim. The March 2005 letter also did not inform him of how disability evaluations and effective dates are assigned and the type evidence which impacts those determinations; however, the Board finds that the veteran has not been prejudiced by this. See Bernard v. Brown, 4 Vet. App. 384 (1993). No new disorder is being service connected and thus neither an evaluation nor effective date is being assigned. Nevertheless, a letter providing this information was sent to the veteran in March 2006. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. Id. The veteran has not identified existing evidence that is necessary for a fair adjudication of the claim. The Decision Review Officer reopened the veteran's claim of service connection for bilateral pes planus and obtained a medical examination and opinion. There was no medical examination provided for the claim involving the right ankle, as such would not be warranted. See 38 C.F.R. § 3.159(c)(4)(iii) (stating that paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured). VA has obtained VA treatment records and private medical records. At the October 2007 hearing before the undersigned, the veteran complained that it was unclear what kind of qualifications the examiner had who had conducted the March 2006 VA examination. The implication was that this person may not be competent to provide a medical opinion. The Board has access to the examiner's credentials, which indicate the examiner is a "physician." Therefore, the undersigned finds that the examiner's qualifications are appropriate for that examination. No further notice or assistance to the veteran is required to fulfill VA's duty to assist the veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). To prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Pursuant to 38 U.S.C.A. § 7105(c), a decision by the RO may not thereafter be reopened and allowed except as may be otherwise provided by regulation. The exception to this rule is described under 38 U.S.C.A. § 5108, providing that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Board] shall reopen the claim and review the former disposition of the claim." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). "New and material evidence" is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence 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). A. Right ankle disability The veteran contends that she developed a chronic right ankle disability during service. At the October 2007 hearing, the veteran stated that she sustained three sprains in service. She described ongoing pain in the right ankle since service and stated she was currently wearing an ankle brace. The veteran claimed that when she was examined after getting out of service that the examiner examined her left ankle but did not examine her right ankle because it was "not on the list." (The veteran is service connected for a left ankle disability.) Service connection for a right ankle disability was denied by the RO in an August 2001 rating decision. The relevant evidence of record at that time was service treatment records, VA treatment records and examination reports, a private medical record, and the veteran's application for benefits. A September 6, 1994, service treatment record shows that the veteran complained of right ankle pain due to a fall that occurred earlier that month (September 2). She reported having prior swelling and keeping her ankle elevated and using ice. She stated she was doing better. The examiner stated that the right ankle had full range of motion, was stable, and had no swelling. The assessment was status post ankle sprain. There is no separation examination. The veteran was discharged with three diagnoses, which did not include a right ankle disability. A July 1997 letter from a podiatrist shows he found that range of motion of the ankle joint (he did not specify which ankle joint) was within normal limits without pain or crepitation. He stated the subluxation talar joint range of motion was abnormal for increase pronation. He diagnosed "Chronic ankle instability." (Again, he did not specify which ankle.) An October 1997 VA examination report shows the examiner found that passive and active examination of all joints was normal. There was no limitation of motion of her joints. An April 1998 VA examination report shows that the right ankle had normal flexion and extension with normal inversion and normal eversion. (The examiner found the left ankle had ligamentous insufficiency.) The RO determined that the evidence failed to show that the veteran had brought forth evidence showing that she had permanent residuals or a chronic disability as a result of the in-service right ankle injury and denied service connection. She was notified of the August 2001 decision along with the appeal rights, and she did not appeal the decision. Therefore, it is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The Board has reviewed the evidence received since the 2001 denial and finds that none of it is new and material evidence. At the time of the 2001 denial, there was a lack of competent evidence of current disability related to her right ankle. The additional evidence consists of VA medical records, VA examination reports, private medical records, a lay statement from her former husband, and statements and testimony from the veteran. The medical records do not address her right ankle or show any current right ankle disability. Thus, this is cumulative and redundant of evidence of record at the time of the August 2001 decision and cannot constitute new and material evidence. See 38 C.F.R. § 3.156(a). None of the evidence received since the 2001 rating decision cures the defect of the lack of competent evidence of a current disability. Thus, the evidence received cannot constitute new and material evidence, as it merely confirms a fact that was already of record at the time of the last denial. See Cox v. Brown, 5 Vet. App. 95, 99 (1993). While the veteran and has testified she has a current right ankle disability, such argument had been made at the time of the last final denial and thus it is cumulative and redundant of the evidence that was of record at the time of the August 2001 rating decision. Reid v. Derwinski, 2 Vet. App. 312 (1992). Regardless of the duplicative nature of her current assertions, her testimony would not be competent to reopen the claim for service connection for a right ankle disability, as that requires a medical opinion. See Moray v. Brown, 5 Vet. App. 211 (1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). Therefore, based upon the above reasons, the Board finds that the evidence associated with the claims file since the August 2001 rating decision is cumulative and redundant of evidence of record at the time of the August 2001 decision and does not raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). Accordingly, the application to reopen such claim is denied. B. Bilateral pes planus The Board finds that new and material evidence has been submitted to reopen the claim for service connection for bilateral pes planus. The claim for service connection for bilateral pes planus was denied in a March 1998 rating decision because VA determined bilateral pes planus had pre- existed service and had not been aggravated during service. Since the 1998 rating decision, evidence has been received that shows a VA podiatrist stating that the pes planus had been exacerbated by her duties during her enlistment and causing her present condition. This relates to an unestablished fact necessary to substantiate the claim, and the claim is reopened and will be considered on the merits. See 38 C.F.R. § 3.156(a). There is no prejudice to the appellant as the RO had discussed all the evidence at the time of decision the case that lead to this appeal. Moreover, the RO has argued the case on the merits essentially throughout. As such, the Board may proceed to a merits review without prejudice. Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b) (2007). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby, 1 Vet. App. at 227. Under 38 U.S.C.A. § 1153, it provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. At the October 2007 hearing, the veteran testified she had no problems with her feet prior to service. In fact, she stated she was very active, such as being on the track team. She described doing a lot of hiking as well prior to service. The veteran also stated she helped her father on the farm. The veteran's father testified that he and the veteran had done lots of physical activities together before she entered service. The veteran stated her shoe size was a size six in the sixth grade, which progressed to a size nine and a half when she was in the ninth grade. She stated she entered service wearing a men's size seven and a half. The veteran described being issued a pair of boots in a seven and a half and thinking they were too big. She stated she did a lot of marching and running. The veteran stated that the problems with pain in her feet started during basic training and she was given arch supports that seemed to take care of the problem for the time being. After basic training, she stated that she was not on her feet as much and that her feet were "fine." It was after she went back into the service that she began having problems with her feet again. She stated that by the time she was discharged from service, her shoe size was a size 10. An October 1988 report of medical examination shows that clinical evaluation of the feet was abnormal. The examiner stated the veteran had mild bilateral pes planus, which was asymptomatic. Because this was noted at entry, the presumption of soundness is rebutted, and the issue before the Board is whether the pre-existing condition was aggravated during any of the veteran's periods of service. The Board will address each period of service individually. 1. First period of service - June 1989 to October 1990 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the disability was aggravated during this period of service. The service treatment records during this period of service show that the veteran complained of pain in her feet. In November 1989, she reported being unable to participate in prolonged runs because of foot discomfort. Physical examination showed that her pes planus was flexible. A December 1989 x-ray of both feet showed mild pes planus of the left foot. In March 1990, she was seen with complaints of experiencing pain when "double timing" up and down hills. The examiner stated she had complete active range of motion, bilaterally. There was no pain to palpation of the feet, bilaterally. There are no other service treatment records from this period of service. While it would appear that there was some increase in symptoms, it does not appear that any increased symptomatology was permanent. For example, a January 1993 report of medical examination shows that clinical evaluation of the feet was "normal." In a report of medical history completed by the veteran at that time, she denied having a history of foot pain. This would indicate that any increased pain she described feeling in service did not cause a permanent aggravation, since she was denying any impairment of her feet as of January 1993. She reiterated the lack of problems with her feet in a May 1994 Applicant Medical Prescreening Form, where she denied any impaired use of the feet. This further supports a finding that any increase pain she experienced during her first period of service was temporary. The medical opinions addressing the issue of aggravation do not distinguish between the veteran's three periods of service. Nevertheless, the Board finds that the medical opinions that found pes planus was not aggravated during service but rather was the result of the natural progress of the disease process outweigh the medical opinions that state her condition was aggravated during service. A physical evaluation board determined that pes planus was not aggravated during service. This is most proximate to the time in question. It was noted that a service physician, who had physically examined the veteran, had found that the subjective discomfort described by the veteran was "out of proportion to objective findings." The physician substantiated this opinion by stating that the pes planus was not anatomically or radiographically particularly severe and that he was at a loss to explain the degree of the veteran's pain or its fractoriness to rest and anti-inflammatory medications. He concluded that the progression of her symptomatic pes planus was objectively within the expected range for the natural progression of this condition. He noted the veteran's report of change in shoe size and that there were a "number of possible reasons" for the increase, including continued growth of the foot, too-tight boots, the need for her footgear to accommodate orthotic inserts, partial collapse of the longitudinal arch, and looser-fitting footgear. This medical opinion was based on physical examination, x-rays, and medical principles. In a March 2006 VA examination report, the examiner made the same conclusion as that made in service, which was that the pre-existing pes planus was not permanently aggravated during service. He based such opinion on review of the claims file and provided a rationale for his opinion. In a July 2005 clinical record, the VA podiatrist stated that it was more likely than not that the veteran's flat foot condition was exacerbated by her duties during her enlistment causing her present symptomatic state. The Board has accorded this medical opinion lessened probative value for several reasons. This podiatrist does not indicate whether he had an opportunity to review the claims file, and appears to be basing his opinion on history reported by the veteran. While the veteran believes her condition was aggravated during service, addressing the issue of aggravation would essentially require a review of the service treatment records because a condition can be exacerbated during service, but be attributable to the natural progress of the disease process or possibly be only a temporary increase in symptomatology. This cursory conclusion without any rationale or any indication of having reviewed objective records at the time in question cannot be given the same kind of weight that the above-described medical opinions can, since at least one of the examiners had an opportunity to examine the veteran's feet at the time of final discharge from service in 1997. He was in the best position to determine whether the pre- existing disability was aggravated during service. Both physicians who did not find that pes planus had been aggravated beyond the natural progress of the disease process had an opportunity to review the service medical records and both provided a rationale for their opinions. This is why the Board has accorded these medical opinions more probative value. A July 1997 medical examination by a private podiatrist shows that her feet had a pes planus deformity. He described her pronation as "severe." He noted that her shoe size was a seven and a half in 1989 and was now a ten and a half, which he stated could only be explained as a result of the lengthening of her foot secondary to the gradual increased severity of the pes planus deformity. The Board finds that the March 2006 VA examiner's and Physical Evaluation Board's medical opinions outweigh this medical opinion as well. While the private podiatrist states that there was a "gradual increase[] in severity of the pes planus deformity," he does not indicate whether such was beyond the natural progress of the disease process. The medical opinion by the physical evaluation board agrees that the pes planus disability had increased in severity, but determined that such increase in symptoms was due to the natural progress of the disease process. This is a much more specific medical opinion than the private podiatrist's and takes into consideration that this disability is not static and can progress over time. Therefore, the more detailed opinion is accorded more probative value. For the above-described reasons, the Board finds that the preponderance of the evidence is against a finding that the pre-existing bilateral pes planus was aggravated beyond the natural progress of the disease process during her first period of service. While the veteran has claimed that her disability was aggravated during service, she is not competent to provide the legal definition of aggravation, as that requires a medical opinion. See Espiritu, 2 Vet. App. at 494. The benefit-of-the-doubt rule is not for application. Gilbert, 1 Vet. App. at 55. 2. Second period of service - October 1993 to May 1994 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the disability was aggravated during this period of service. The service treatment records during this period of service fail to show any complaint of pes planus. The May 1994 Applicant Medical Prescreening Form described above was completed after this period of active duty, which had ended earlier that month. Nevertheless, that shows the veteran denied any impaired use of her feet, which would show no increased symptoms (or any symptoms) during this period of service. A June 1994 report of medical examination indicated the veteran had bilateral pes planus but that it was asymptomatic. As stated above, once a condition is properly found to have been pre-existing, the presumption of aggravation provides that a pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during such service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). However, here, that presumption would not be applicable to this period of service, as the veteran's service treatment records do not show a worsening of the bilateral pes planus. See id.; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service). For the above-described reasons, the Board finds that the preponderance of the evidence is against a finding that the pre-existing bilateral pes planus was aggravated beyond the natural progress of the disease process during her second period of service. While the veteran has claimed that her disability was aggravated during service, she is not competent to provide the legal definition of aggravation, as that requires a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The benefit-of-the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Third period of service - July 1994 to October 1997 After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the disability was aggravated during this period of service. The service treatment records during this period of service show that the veteran complained multiple times of pain in her feet. In December 1995, she was seen for bilateral foot pain when running. The examiner noted the veteran was able to heel and toe walk without difficulty. The examiner diagnosed bilateral pes planus, which was chronic. In March 1996, she was fitted for arch supports. She described having pain in her feet "for years." She was put on physical profile for her feet in April 1996 and again in July 1996. A July 1997 medical examination by a private podiatrist shows that her feet had a pes planus deformity. He described her pronation as "severe." He noted that her shoe size was a seven and a half in 1989 and was now a ten and a half, which he stated could only be explained as a result of the lengthening of her foot secondary to the gradual increased severity of the pes planus deformity. Thus, there is no doubt that the veteran's bilateral pes planus increased in severity during this period of service. The question is whether it was due to the natural progression of the disease process, which the Board finds is the case. The Board has accorded more probative value to the medical opinions against a finding that pes planus was aggravated beyond the natural process of the disease process than the ones that support a finding of aggravation. It has discussed why it has accorded the former medical opinions more probative value and why the July 1997 and July 2005 opinions were accorded lessened probative value. That discussion is applicable here as well and need not be repeated. For the above-described reasons, the Board finds that the preponderance of the evidence is against a finding that the pre-existing bilateral pes planus was aggravated beyond the natural progress of the disease process during her third period of service. While the veteran has claimed that her disability was aggravated during service, she is not competent to provide the legal definition of aggravation, as that requires a medical opinion. See Espiritu, 2 Vet. App. at 494 (1992). The benefit-of-the-doubt rule is not for application. Gilbert v. Derwinski, 1 Vet. App. at 55. ORDER The application to reopen the claim for service connection for right ankle disability is denied. The application to reopen the claim for service connection for bilateral pes planus is reopened, and service connection for bilateral pes planus is denied. REMAND In a June 2006 Memorandum, the veteran alleged that there was clear and unmistakable error in the August 2001 rating decision, which continued the 10 percent evaluation for major depression. (The veteran did not appeal that rating decision.) She contends that the evidence clearly and convincingly showed she warranted a higher evaluation at that time for her service-connected psychiatric disorder. The Board finds that it must defer consideration of the veteran's claim for entitlement to an effective date earlier than October 12, 2004, for the award of a 50 percent evaluation for major depression with co-diagnosis of post- traumatic stress disorder for VA to consider the veteran's allegations of clear and unmistakable error in the August 2001 rating decision, as such claims is inextricably intertwined with the claim for an earlier effective date. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). Specifically, if clear and unmistakable error is found in the August 2001 rating decision, it could directly impact the effective date of the award of the 50 percent evaluation for the service-connected psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should consider the veteran's claim of clear and unmistakable error in the August 2001 rating decision regarding the service-connected major depression (now characterized as major depression with co-diagnosis of post- traumatic stress disorder). 2. Thereafter, as appropriate, the RO/AMC should readjudicate the veteran's claim for entitlement to an effective date earlier than October 12, 2004, for the award of a 50 percent evaluation for major depression with co-diagnosis of post-traumatic stress disorder. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. Thereafter, the case should be returned to the Board for appellate review. 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 Supp. 2007). ________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs