Citation Nr: 1327151 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-06 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disorder, to include as secondary to service-connected bilateral feet and/or bilateral ankle disabilities. 2. Entitlement to a rating in excess of 10 percent for pes planus with callosities, bunion of the right fifth toe, and left fifth toe fracture. 3. Entitlement to a rating in excess of 10 percent for residuals of a right ankle sprain with weakness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to December 1998. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran submitted a notice of disagreement in November 2008 and perfected her appeal. The Board acknowledges that the Veteran references her left ankle in the February 2010 substantive appeal. However, an increased rating of the left ankle was not adjudicated in the September 2008 rating decision; rather, the rating decision indicated that the matter was being deferred for an examination of the left ankle. In an October 2008 rating decision, the RO then adjudicated the issue and assigned a 10 percent rating for the left ankle disability. Importantly, the Veteran did not submit a timely notice of disagreement with this rating decision. A review of her November 2008 statement expressly reflects that she disagreed with "all issues" in the "decision dated September 18, 2008." Thus, this statement cannot be construed as a notice of disagreement with the October 2008 rating decision regarding the left ankle. Accordingly, the Board does not have jurisdiction over any claim pertaining to the evaluation assigned to the left ankle. 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 Although any additional delay is regrettable, a remand is necessary for further development with respect to the Veteran's claims. As an initial matter, with regard to the Veteran's service connection claim, she stated in her September 2010 substantive appeal that she felt that the feet, ankles, and knees all seemed to work collectively. Additionally, in July 2013, her representative noted that the Veteran "contends that her bilateral knee disability manifested from her service-connected bilateral foot disability and the altered gait the feet cause." Thus, the Veteran has expressly raised a new theory of entitlement, that of secondary service connection. However, the Veteran has not yet been provided with notice of how to substantiate a claim for secondary service connection. Therefore, she needs to be provided with a proper VCAA notice letter that addresses how to establish service connection on a secondary basis. See generally Kent v. Nicholson, 20 Vet. App. 1, 12 (2006) (observing that incomplete information can render a VCAA notice letter inadequate). Moreover, the Board finds that a VA examination is warranted because there is insufficient medical evidence of record to ascertain whether the Veteran's service-connected bilateral feet and/or bilateral ankle disabilities may have caused or aggravated her claimed bilateral knee disorder. Secondly, with regard to the Veteran's increased rating claims, her representative indicated in the July 2013 presentation that at the time of the Veteran's September 2008 VA examination of the feet and right ankle, "the [V]eteran's symptomatology was not near as severe as the current symptomatology." Thus, it has clearly been alleged that the Veteran's bilateral feet and right ankle disabilities have substantially worsened since the last VA examination in September 2008. VA's General Counsel has stated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). Therefore, she should be afforded another VA examination for the purpose of determining the current severity of her service-connected feet and right ankle disabilities. Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with a VCAA notice letter that advises her of the information and evidence needed to substantiate her claim for service connection for a bilateral knee disorder as secondary to her service-connected bilateral feet and/or bilateral ankle disabilities. 2. The RO/AMC should obtain a VA examination and opinion regarding the nature and etiology of the Veteran's bilateral knee disorders. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the opinion. All pertinent symptomatology and findings must be reported in detail. (a) For all diagnoses of the right and left knee rendered, the examiner is requested to offer an opinion as to whether is at least as likely as not (i.e., at least a probability of 50 percent or greater) that the disorder is caused by or aggravated by her service-connected feet and ankle disabilities; and (b) In rendering the above opinion, the examiner is directed to discuss whether the Veteran's service connected disabilities result in an altered gait that impacts the knees. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. The RO/AMC should obtain a new VA examination regarding the nature and severity of the Veteran's bilateral feet and right ankle disabilities. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner in conjunction with the examination. (a) All pertinent symptomatology and findings must be reported in detail; and (b) The examiner is specifically requested to discuss any functional loss as a result of pain or other factors. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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 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). _________________________________________________ WAYNE M. BRAEUER 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).