Citation Nr: 1326194 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-31 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for bilateral knee disability, to include as secondary to service-connected plantar warts of both feet, hyperhidrosis of both feet, and periungual warts of the right thumb and index finger. 2. Entitlement to service connection for bilateral hip disability, to include as secondary to service-connected plantar warts of both feet, hyperhidrosis of both feet, and periungual warts of the right thumb and index finger. 3. Entitlement to a rating in excess of 10 percent for plantar warts of both feet, hyperhidrosis of both feet, and periungual warts of the right thumb and index finger. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1971. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin (RO). The above-captioned claims were previously before the Board in September 2010, April 2012, and April 2013. On each of these occasions, the Board remanded the claims for additional development. After the development requested in the April 2013 remand was accomplished, the RO readjudicated the Veteran's claims and remitted them to the Board for further appellate review. The Veteran and his spouse testified at a September 2009 Decision Review Officer hearing in September 2009. A copy of the transcript has been associated with the Veteran's claims file. The Board finds that the issues of entitlement to service connection for bilateral foot degenerative joint disease, and bilateral pes planus, have been raised by the record, but have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over the claims, and they are referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND A. Plantar Warts, Hyperhidrosis, and Periungual Warts In April 2013, the Board remanded the Veteran's bilateral foot increased rating claim for additional development. Specifically, the Board directed the RO to provide the Veteran another VA examination. The VA examiner was asked to ascertain the nature of all present foot disability(ies). If the present diagnosis was not plantar warts, the examiner was asked to opine as to whether any of the Veteran's present foot disabilities was related to service, was a residual of the foot disability for which service connection was granted, or a residual of the treatment he received for the service-connected foot disability. In May 2013, the Veteran underwent a series of VA examinations. Ultimately, although the examiner found no plantar warts or calluses were present, findings of residuals of plantar warts, hyperkeratosis, pes planus, and degenerative joint disease of both feet were noted. The examiner then provided negative etiological opinions with respect to pes planus and degenerative joint disease of both feet, but rendered no opinion regarding hyperkeratosis, to include whether the hyperkeratosis was a residual of the service-connected bilateral foot disability or a residual of treatment he received for the service-connected bilateral foot disability. Based on the above, the Board finds that the May 2013 VA examination is not adequate and the evidence of record is otherwise insufficient to adjudicate the Veteran's claim properly. See Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (holding that a remand may be required if the evidence of record contains insufficient information for evaluation purposes). Consequently, a remand to obtain a supplemental opinion or provide the Veteran another VA examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)("Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided."). B. Bilateral Knee and Bilateral Hip Disabilities The claims of entitlement to service connection for bilateral knee disability and bilateral hip disability are inextricably intertwined with the issue of entitlement to a rating in excess of 10 percent for plantar warts of both feet, hyperhidrosis of both feet, and periungual warts of the right thumb and index finger. All issues "inextricably intertwined" with the issue certified for appeal, are to be identified and developed prior to appellate review. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The issues of entitlement to service connection for bilateral knee disability and bilateral hip disability are intertwined with the increased rating claim because a decision on the latter claim may have an impact on the former claim. Specifically, as discussed above, a question remains as to the scope of the Veteran's service-connected plantar and periungual wart and hyperhidrosis disability. A determination with respect to this issue may affect the disposition of the Veteran's service connection claims. As such, a remand for contemporaneous adjudication is warranted. Id. Accordingly, the case is REMANDED for the following action: 1. The RO must request the May 2013 VA examiner to provide a supplemental opinion. The claims file must be made available to and reviewed by the examiner. The examiner must address the following question: Is it at least as likely as not that the hyperkeratosis diagnosed on VAX in May 2013 is etiologically related to service, or is a manifestation of, or residual of treatment for, the service-connected bilateral foot disability? A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion, it must be so stated, and the examiner must provide the reasons why an opinion could not be rendered. The examiner must indicate whether there is any further information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. If the May 2013 VA examiner is not available, the Veteran must be afforded another VA examination. The claims file must be made available to and reviewed by the examiner. All necessary and appropriate tests must be performed and their results documented. After examining the Veteran and reviewing the service and post-service treatment records and the lay evidence of record, the examiner is requested to address the question presented in paragraph #1 above. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion, it must be so stated, and the examiner must provide the reasons why an opinion could not be rendered. The examiner must indicate whether there is any further information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If a new examination is provided to the Veteran, the RO must notify the Veteran that it is his responsibility to report for that examination and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with his claims file that shows that notice scheduling the examination was sent to the last known address. Documentation must also be obtained and associated with his claims file indicating whether any notice that was sent was returned as undeliverable. 4. If a VA examiner finds that bilateral foot hyperkeratosis is related to service, or a manifestation of, or residual of treatment for, the service-connected bilateral foot disability, the examiner must opine whether it is at least as likely as not that a knee or hip disability is proximately due to, or chronically aggravated by, service-connected bilateral foot disability. Rationale must be provided for the opinion proffered. 5. After undertaking all additional development that is deemed necessary, the RO must then adjudicate the Veteran's claims on appeal, to include consideration of all relevant evidence of record. If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ U. R. POWELL 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).