Citation Nr: 1330337 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-01 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a bilateral ankle disability, to include as secondary to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from February 1949 to September 1952. This case was previously before the Board of Veterans' Appeals (Board) on appeal from May 2001 and March 2003 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Buffalo, New York, (RO). In April 2004, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). The case was remanded by the Board in September 2004, January 2009, and September 2011 for additional development regarding this claim. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). In the September 2013 Written Brief Presentation from the Veteran's representative, there is a discussion concerning the Veteran's pes planus and its relationship to service and other service connected disabilities. It is unclear whether this was intended to be an expression of disagreement with the January 2013 decision that denied service connection for pes planus, or a desire to establish a new claim for benefits under a new theory of entitlement. In any event, entitlement to any benefits arising from pes planus has not been developed for appeal, and the matter is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND For the first time, the Veteran's representative has raised the theory of entitlement that the Veteran's bilateral ankle disability is secondary to one or the other, or all of the Veteran's currently service connected disabilities. (These are bilateral knee and hip disabilities, together with right and left knee scars.) The representative requested that the Veteran undergo another examination. This theory of entitlement should be more explicitly explored as indicated below before a final determination is entered. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The Veteran should be scheduled for a VA compensation examination for an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any diagnosed bilateral ankle disability was either caused by or increased in severity beyond its natural progression by one or the other, or all of the Veteran's service-connected disabilities. (These service connected disabilities include right knee, left knee, right hip and left hip disabilities, together with left and right knee scars.) The examiner should discuss the underlying medical rationale of the opinion, whether favorable or unfavorable, citing to specific evidence in the file. If no opinion can be rendered concerning this claim, without resorting to mere speculation, an explanation as to why this is not possible or feasible should be provided - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead he needs further information to assist in making this nexus determination, the nature of which should be described. The Veteran is hereby advised that failure to report for this examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655(b) (2013). 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran 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). 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). _________________________________________________ MICHAEL E. KILCOYNE 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) (2013).