Citation Nr: 1329312 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 03-33 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected cervical spine and left shoulder disabilities. 2. Entitlement to service connection for a right knee disability, to include as secondary to the service-connected left knee disability. 3. Entitlement to service connection for bilateral foot disability, to include as secondary to service-connected left knee and thoracolumbar spine disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to December 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. By that rating action, the RO, in part, denied service connection for arthritis of multiple joints. The Veteran appealed this rating action to the Board. Jurisdiction of the appeal currently resides with the Oakland, California RO. The Veteran presented testimony before a decision review officer at the RO in October 2008. A transcript of the hearing is of record. The issues on appeal were most recently before the Board in March 2013. At that time, the Board, in part, reopened a previously denied claim for service connection for arthritis of multiple joints, to include, but not limited to, the right knee and feet. The Board remanded the underlying service connections claims for the above-cited disabilities and the claim for service connection for a right shoulder disability to the RO for additional substantive development. The requested development has been accomplished and these matters have returned to the Board for appellate consideration. In a May 2013 written argument to VA, the Veteran argued that his right shoulder and right knee disabilities are secondary to his service-connected left shoulder and left knee disabilities, respectively. He has also maintained that his service-connected bilateral foot disability is secondary to his service-connected thoracolumbar strain and left knee disabilities, respectively. (See VA Form 21-4138, Statement in Support of Claim, dated and signed by the Veteran in May 2013). Prior to submission of the May 2013 statement, the Veteran had not expressly raised these secondary theories of entitlement. VA must adjudicate all theories of entitlement reasonably raised by the record, including a liberal reading of a veteran's statements. See Robinson v. Peake, 21 Vet. App. 545, 552-553 (2008). Moreover, a Veteran's alternative theories of entitlement to service connection are encompassed within a single claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). Accordingly, the Veteran's secondary theories of entitlement with respect to each of the service connection claims on appeal requires complete notice and adjudication as a component of the instant appeal. Finally, and with respect to the Veteran's claim for service connection for a bilateral foot disability, the Board notes that the claim was originally characterized as entitlement to service connection for arthritis of the feet. The evidence of record reflects that various clinicians have found the Veteran to have had a variety of foot disorders throughout the appeal, such as bilateral pes planus, valgus deformity of the feet, degenerative arthritis of the left foot, and minute plantar calceneal spur, bilaterally. He has also been found to have had gout that affects, in part, his feet. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) has held that a service connection claim that describes only one particular psychiatric disorder should not necessarily be limited to that disorder. Rather, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by evidence of record. Id. As such, and applying this analysis to the Veteran's claim, the Board finds that it is more appropriate to consider the Veteran's foot symptoms as a single disability. Thus, the Board has expanded the claim as entitlement to service connection for a bilateral foot disability, as noted on the title page. 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 After a review of all evidence of record, the Board has determined that additional procedural and substantive development, as outlined in the directives below, is warranted prior to further appellate review of the claims for service connection for right shoulder, right knee and bilateral foot disabilities, each to include on a secondary basis. Procedural Development The Veteran has not been provided notice in accordance with the Veterans Claims Assistance Act (VCAA) that addresses the requirements for a claim for service connection for hypertension on a secondary basis in accordance with 38 C.F.R. § 3.310 (2012) and Allen v. Brown, 7 Vet. App. 439 (1995). Thus, on remand, the Veteran should be provided VCAA notice for the requirements of substantiating his claims for service connection for right shoulder, right knee and bilateral foot disabilities on a secondary basis. Moreover, the RO must adjudicate the Veteran's claims to include both alternative theories of entitlement involving direct and secondary service connection. Substantive Development (i) Right Shoulder Disability As noted in the Board's March 2013 remand, an October 2008 VA examiner noted that the Veteran's complaints of shoulder problems were associated with his neck condition. Specifically, the Veteran had complained of pain and stiffness in the trapezius muscles that travelled down to his shoulders, and pain in the neck that radiated posteriorly to the arm and elbow, mainly to the right shoulder. (See October 2008 VA examination report). In light of the Board's decision to grant service connection for a cervical spine disability in its March 2013 decision, and the evidence of record, including the Veteran's reports of shoulder pain associated with his cervical spine disability, and evidence of a current right shoulder disability (i.e., minimal degenerative changes of the acromioclavicular joint of the right shoulder), the Board requested, in part, that the Veteran be afforded a VA examination and opinion that addressed, in part, the secondary service connection aspect of his right shoulder claim. (See March 2013 Board remand, pages (pgs.) 22, 23 and 28)). VA examined the Veteran in April 2013. Although the April 2013 VA examiner provided an opinion as to the direct service connection component of the Veteran's claim for service connection for a right shoulder disability, he did not provide the requested secondary service connection opinion. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO has not considered the Veteran's claim that his right shoulder disability was caused or aggravated by his service-connected left shoulder, as recently argued by the Veteran in a May 2013 written argument. Thus, on remand, and as specifically requested by the Veteran's representative in an August 2013 written argument to the Board, the Veteran should be afforded an additional VA examination with an opinion as to whether his service-connected cervical spine and left shoulder disabilities caused or permanently worsened beyond normal progression (aggravated) his right shoulder disability. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995); 38 C.F.R. § 3.310 (2012). (ii) Right Knee and Bilateral Foot Disabilities As noted in the Introduction section of this decision, the Veteran has recently maintained that his current right knee disability (right knee sprain/strain) is secondary to his service-connected left knee disability. He also argued that his bilateral foot disability is secondary to his service- connected thoracolumbar strain and left knee disability. The Board also notes that the RO has not considered the Veteran's claim for service connection for a right knee disability on a secondary basis. Thus, on remand, and as specifically requested by the Veteran's representative in an August 2013 written argument to the Board, the Veteran should be afforded an additional VA examination and opinion as to whether his service-connected right knee and bilateral foot disabilities have been caused or permanently worsened beyond their normal progression (aggravated) by his service- connected left knee disability (right knee and bilateral foot disabilities) and thoracolumbar strain (bilateral foot disability). Id. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO/AMC should specify what evidence VA will provide and what evidence the Veteran is to provide. Notably, the Veteran should be asked to provide the name(s) of any VA or non-VA health care provider that has treated his right shoulder, right knee and feet since April 2013. If the Veteran responds, the RO/AMC should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159 (2012). All records/responses received should be associated with the claims files. If any records sought are not obtained, the RO should notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 2. Send the Veteran a corrective VCAA notice that addresses the requirements for a claim of entitlement to right shoulder, right knee and bilateral foot disabilities on a secondary basis in accordance with 38 C.F.R. § 3.310. This notice must also inform the Veteran of which information and evidence, if any, that he is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on his behalf. 3. After all records and/or responses received from each contacted entity have been associated with the claims files, the RO/AMC should arrange for the Veteran to undergo VA examinations by appropriate specialists at a VA medical facility. The claims files and electronic VA treatment records shall be made available to and reviewed by the examiners. The examiners then shall obtain from the Veteran a description of his relevant history and symptomatology, to include information about onset, frequency, duration, and severity. All tests, studies, or evaluations deemed necessary next shall be performed. The examiners thereafter shall provide opinions to the following questions as it relates to his or her specific disability (i.e., right shoulder, right knee and feet): (i) Is it as least as likely as not (50 percent probability or greater) that the Veteran's right shoulder disability is due to or has been aggravated (permanently worsened beyond natural progression) by the service-connected cervical spine and/or left shoulder disabilities? If aggravation is found, the examiner finally shall opine, if possible, as to (a) the baseline level of right shoulder disability prior to the aggravation and (b) the current level of right shoulder disability. (ii) Is it as least as likely as not (50 percent probability or greater) that the Veteran's right knee and bilateral foot disabilities are due to or have been aggravated (permanently worsened beyond natural progression) by the service-connected left knee disability? With respect to the Veteran's bilateral foot disability, is it as least as likely as not that it is due to or has been aggravated (permanently worsened beyond natural progression) by the service-connected thoracolumbar strain? If aggravation of the right knee and/or feet is found, the examiner shall opine, if possible, as to (a) the baseline level of any right knee disability and/or bilateral foot disability prior to the aggravation and (b) the current level of that specific disability. Each examiner must provide a complete explanation (rationale) for his or her respective opinion. If any opinion cannot be provided without resort to mere speculation, the respective examiner shall provide a complete explanation for why this is so. In so doing, the examiner specifically shall indicate whether or not the inability to render the opinion is the result of a need for additional information or of the limits of current medical knowledge having been exhausted. 4. After the above has been completed, the RO/AMC should review the claims files and ensure that all of the development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examiners' reports. If any VA report does not include adequate responses to the specific opinions requested, the report must be returned to the providing health care provider for corrective action. 5. Readjudicate the issues of entitlement to service connection for a right shoulder disorder, to include as secondary to the service-connected cervical spine and left shoulder disabilities; entitlement to service connection for a right knee disability, to include as secondary to the service- connected left knee disability; and, entitlement to service connection for bilateral foot disability, to include as secondary to service-connected left knee and thoracolumbar spine disabilities. If any of these benefits sought is not granted, the Veteran and his representative shall be provided with a supplemental statement of the case (SSOC) that addresses all evidence received since issuance of the May 2013 SSOC and afforded the requisite time period to respond. 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 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). _________________________________________________ Michael J. Skaltsounis 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).