Citation Nr: 1316624	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  06-19 803	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

1.  Entitlement to service connection for a right knee disability.

2.  Entitlement to an initial rating higher than 30 percent for flat feet.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Meawad, Counsel






INTRODUCTION

The Veteran served on active duty from December 1972 to December 1977 and from May 7, 1999, to August 14, 1999.  He also had additional service with the Air Force Reserve, which terminated in May 2004. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In May 2009, November 2010, and June 2012 the Board remanded the case for further development.  

Since the requested development has not been completed, further action to ensure compliance with the remand directive is required.  Stegall v. West, 11 Vet. App. 268 (1998).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  


REMAND

In its remand in June 2012, the Board directed that the Veteran be afforded a VA examination to determine whether the right knee disability was caused by or aggravated by the service-connected flat feet. 

The requested VA examination was conducted in August 2012.  Although the VA examiner stated that the right knee disability was not related to service or aggravated by the service-connected flat feet, the VA examiner did not provide a rationale for the opinion on aggravation that accounts for medicolegal question presented.  



In a similar manner, in an addendum in February 2012, the VA examination failed to provide rationale for concluding that the service-connected left knee did not aggravated the right knee disability. 

As the evidence of record is insufficient to decide the applicable theories of service connection, further development under the duty to assist is needed.  

On the claim for increase for flat feet, the most recent supplemental statement of the case in December 2012 did not address the findings from the VA examination in August 2012 and private medical evidence in May 2012, requiring further procedural development. 

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination by a health-care provider who has not previously examined the Veteran to determine:

Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the right knee disability is aggravated by either the service-connected left knee or service-connected flat feet or both? 

In this context the term "aggravation" means a permanent increase in severity of the right knee disability, that is, a worsening of the underlying condition not due to the natural progress by either service-connected disability or both as contrasted to a temporary worsening of symptoms.




The Veteran's file should be made available to the VA examiner for review.  

2.  After the above development has been completed, adjudicate the claim of service connection for a right knee disability, including secondary service connection, including any additional evidence. 

On the claim for increase for flat feet, adjudicate the claim, considering the results of the VA examination in 
August 2012 and the private medical evidence of May 2012. 

If any benefit sought is denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board.

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

The claims 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).


_________________________________________________
George E. Guido Jr. 
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).