Citation Nr: 1315145 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-46 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a left knee disability, to include as secondary to bilateral pes planus. 2. Entitlement to service connection for a right knee disability, to include as secondary to bilateral pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1971 to December 1973 and had additional service with the Army National Guard from June 1982 to August 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2012, the Veteran and his spouse testified at a video conference hearing before the undersigned Acting Veterans Law Judge (AVLJ). A transcript of the proceeding is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board notes that the Veteran has asserted in correspondence received in February 2013 that the left and right knee disabilities are a result of his recently service-connected bilateral pes planus. The Board notes that service connection may be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, the Veteran was not service-connected for bilateral pes planus at the time of the original adjudication of his claim; therefore, a review of the record shows that these claims yet to be adjudicated based on the theory of secondary service connection. Moreover, the Veteran has not been provided all required notice in response to a claim for service connection on a secondary basis. In addition, his representative has cited studies suggesting the presence of a nexus between pes planus and knee problems. Therefore, the Board has determined that the Veteran should be afforded a VA examination to determine if his claimed knee disabilities were caused or aggravated by the service-connected disability. The appropriate development should be conducted and the claims should be readjudicated on the basis of secondary service connection. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with notice of the evidence required to establish entitlement to service connection for bilateral knee disability on a secondary basis, to include the respective duties of VA and the claimant in obtaining such evidence. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding medical records pertaining to post-service treatment or examination of the Veteran for his claimed bilateral knee disability. 3. Then, the Veteran should be afforded a VA examination by a physician with sufficient expertise to render an opinion as to the etiology of his bilateral knee disability. The claims folder must be made available to and reviewed by the examiner. Based upon the examination results and the review of the record, the examiner should provide an opinion as to any bilateral knee disability diagnosed during the pendency of this claim as to whether there is a 50 percent or better probability that any left or right knee disability was (a) caused by or (b) permanently worsened by his service-connected bilateral pes planus. The rationale for the opinion must also be provided. 4. Then, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be issued to the Veteran and his representative. The requisite period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. 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). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ MATTHEW TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).