Citation Nr: 1331264 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-03 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether there was clear and unmistakable error in the May 2001 rating decision that denied entitlement to service connection for bilateral flat feet. 2. Whether new and material evidence has been submitted to reopen entitlement to service connection for bilateral pes planus (flat feet), and if so, whether service connection is warranted for the claimed disability 3. Entitlement to service connection for a right knee disability as secondary to the Veteran's bilateral pes planus. 4. Entitlement to service connection for a left knee disability as secondary to the Veteran's bilateral pes planus. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to August 1978. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in November 2006 and February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified during a hearing before the undersigned Veterans Law Judge in February 2011. A transcript of the hearing is of record. The Veteran requested a travel Board hearing with respect to his CUE claim in the March 2012 substantive appeal. The Veteran was scheduled for a Travel Board hearing in July 2012. The Veteran failed to appear at the scheduled hearing. Furthermore, a letter dated in July 2012, but received by the Board in October 2012, shows that the Veteran withdrew his request for a hearing by written correspondence. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the issue based on the evidence of record. See 38 C.F.R. §§ 20.702(d), 20.704 (2013). The Veteran submitted additional evidence, a medical opinion and VA treatment records, in April 2013. The Veteran did not submit a waiver of initial RO review of this evidence. Nonetheless, the Board will not refer this evidence to the RO, because the benefit to which the evidence relates can be granted in full on appeal without such referral. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issues on appeal. The issue of entitlement to service connection for a bilateral knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The RO denied the Veteran's claim of entitlement to service connection for flat feet in a May 2001 rating decision. The Veteran was notified of the decision in May 2001 at his then current address of record and he did not appeal this decision within one year from the date of the rating decision. 2. The Veteran has failed to establish any kind of error of fact or law in the May 2001 rating decision in denying entitlement to service connection for bilateral flat feet that when called to the attention of later reviewers, compels the conclusion that the result would have been manifestly different but for the error. 3. Evidence associated with the claims file since the May 2001 rating decision was not of record at the time of the decision and it relates to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral pes planus. 4. The Veteran's April 1978 entrance examination demonstrates that pes planus was noted at the time of entry into active military service and the evidence is at least in equipoise with respect to whether the veteran's bilateral pes planus underwent a permanent increase in severity during military service. CONCLUSIONS OF LAW 1. The May 2001 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. The May 2001 rating decision that denied service connection for bilateral flat feet does not contain clear and unmistakable error. 38 U.S.C.A. §§ 5101, 5109A, 7105 (West 2002); 38 C.F.R. § 3.104, 3.105(a) (2013). 3. The evidence received subsequent to the May 2001 rating decision is new and material and the claim of entitlement to service connection for bilateral pes planus (flat feet) is reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156(a) and (c) (2013). 4. Bilateral pes planus were aggravated by active military service. 38 U.S.C.A. §§ 1131, 1132, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting the Veteran's request to reopen the claim of entitlement to service connection for bilateral pes planus, as well as, the underlying service connection claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Furthermore, the duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) are not applicable to CUE claims as a matter of law. The Court of Appeals for Veterans Claims (Court) has held that VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F. 3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). II. Clear and Unmistakable Error The Veteran contends that the May 2001 rating decision that denied service connection for bilateral flat feet was clearly and unmistakably erroneous. He essentially argues that the incorrect facts were before the adjudicator and/or the RO failed to correctly apply the regulations pertaining to aggravation and should have found that his pre-existing bilateral flat feet were permanently worsened as a result of his service. The RO denied the Veteran's service connection claim for bilateral flat feet in a May 2001 rating decision. The RO notified the Veteran of this decision in May 2001 at the Veteran's then current address of record. He did not file a notice of disagreement with the May 2001 rating decision. Therefore, the May 2001rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.105(a); 3.400(k) (2013). The Court has propounded a three-pronged test to determine whether clear and unmistakable error is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made." Third, a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). At the time of the May 2001 rating decision, the record included the Veteran's claim for benefits and his service treatment records. The service treatment records reveal that the April 1978 entrance examination documented that the Veteran had asymptomatic pes planus, not considered disqualifying (NCD). An April 1978 service treatment record documents that the Veteran complained of flat feet pain in the arch region that increases during marching and on hard surfaces. The clinician noted that this was not documented on the Veteran's entrance examination. A June 1978 Medical Board noted that the Veteran has had painful ankles for the past four years with an increase in symptoms since entering active duty training. The Veteran stated that he has had problems with his ankles and arches whenever he stands for long periods of time or is physically active. It was determined that the Veteran had moderately severe flexible bilateral flat feet that existed prior to service and it was not aggravated by active duty. The May 2001 rating decision shows that in denying the Veteran's claim for service connection, the RO weighed the evidence and determined that the disability existed prior to service and it was not aggravated by service. The RO explained the Report of Medical examination conducted in April 1978 for entry into service indicated that the Veteran's bilateral flat foot condition existed prior to his entry on active duty. He was treated for this condition in June 1978 and the assessment was severe, flexible, flat feet, bilaterally. The RO noted that he was placed on physical profile and recommended discharge in June 1978. The military medical board proceedings dated in June 1978 noted that the bilateral flat foot condition existed prior to entry on active duty and the condition was not aggravated by service. Therefore, the RO denied the claim. Under the laws and regulations existing at the time of the May 2001decision, a veteran was presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except as to defects, infirmities, or disorders noted at entrance into service or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed showed that a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991 & Supp. 2000), 38 C.F.R. § 3.304(b) (2000). Only such conditions recorded in an examination report were considered as "noted" at service entrance. 38 C.F.R. § 3.304(b) (2000). A pre-existing disease would be considered to have been aggravated during active service where there was an increase in disability during such service, unless there was a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306 (2000). If the disorder was clinically noted on examination for entrance to service, the Veteran cannot bring a claim for service connection for this disorder on a direct-incurrence basis, but he may bring a claim for service-connected aggravation of his claimed disability. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991 & Supp. 2000); 38 C.F.R. § 3.306. In this regard, a flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If the disorder was noted at entrance, the burden is on the Veteran to show a chronic worsening of the pre-existing disorder. See Jensen, 19 F.3d at 1417 (Fed. Cir. 1994). The Board observes that the Veteran contends that he did not have flat feet prior to service. The Veteran and his attorney further argued in a February 2011 statement and during the February 2011 Board hearing that the April 1978 entrance examination does not state that he had a bilateral flat foot condition prior to entry into service. In support of this contention, he notes that an April 1978 service treatment record shows that a clinician documented that the Veteran's flat feet were not noted on the SF 88 (Report of Medical Examination). He also asserts that the June 1978 treatment record is incorrect and that he never had treatment for his feet/ankles prior to service. Nonetheless, as mentioned above, the Veteran entrance examination (Report of Medical Examination, SF 88) dated in April 1978 documented in the summary of defects and diagnoses that the Veteran had asymptomatic pes planus that was not disqualifying. Thus, the Board concludes that the RO did not err in determining that the Veteran's pes planus existed prior to service as the disorder was noted when examined at entrance into service. Regarding the Veteran's assertion that his disability was aggravated by military service, the Board notes that the Veteran's service treatment records indicate that his symptoms of flat feet increased in severity during service, but the service records also show that a Medical Board determined that his bilateral flat feet were not aggravated by service. In essence, the Veteran's contention boils down to a disagreement with how the facts were weighed and evaluated. An assertion that previous adjudications had improperly weighed the evidence can never rise to the stringent definition of CUE. See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Fugo v. Brown, 6 Vet. App. 40 (1993), motion for review denied, 6 Vet. App. 162 (1993) (en banc). CUE is an error of fact or law that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. at 43. Neither a claim alleging improper weighing and evaluating of the evidence in a previous adjudication, nor general, non-specific claims (including sweeping allegations of failures to follow the regulations or to provide due process) meet the restrictive definition of CUE. Id. at 44. Importantly, "clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provision to the correct and relevant facts; it is not mere misinterpretation of facts." Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). Based on the foregoing, the Board finds that the RO did not commit clear and unmistakable error in the May 2001 rating decision that denied the claim of entitlement to service connection for bilateral flat feet. The Veteran has not showed either that the correct facts were not available to the RO or that the laws were not correctly applied. Consequently, the requirements for showing CUE in the May 2001 rating decision have not been met and the claim for CUE must be denied. See Luallen v. Brown, 8 .App. 92 (1995). III. New and Material Evidence A rating decision dated in May 2001 denied entitlement to service connection for bilateral pes planus because it existed prior to service and it was not aggravated by service. The relevant evidence of record at the time of the May 2001 rating decision consisted of the Veteran's claim for benefits and service treatment records. The Veteran did not file a notice of disagreement with the May 2001 rating decision. Therefore, the May 2001 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2013). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Competency of new evidence, however, is not presumed. Although the RO determined in a November 2006 rating decision to reopen the claim of entitlement to service connection for bilateral flat feet, such decision is not binding on the Board. The Board must first decide whether evidence has been received that is both new and material to reopen the claim. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (the Board "does not have jurisdiction to consider a claim which it previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. What the [RO] may have determined in this regard is irrelevant."). Thus, the Board will adjudicate the question of whether new and material has been received. The Veteran submitted a request to reopen entitlement to service connection for a bilateral foot disorder in July 2006. The relevant evidence of record received since the May 2001 rating decision includes VA treatment records, private treatment records, a letter from the Veteran's private physician dated in September 2006, a private medical evaluation dated in October 2012, Social Security disability records, lay statements from the Veteran and a transcript of the February 2011 Board hearing. The evidence received since the May 2001 rating decision is new in that it was not of record at the time of the May 2001 decision. The Veteran's private physician provided an opinion in a letter dated in September 2006 that active military service could exacerbate the condition of his feet. An October 2012 private medical evaluation asserts that it is as likely as not that the Veteran's bilateral pes planus were aggravated by active military service. Thus, there is evidence indicating that the Veteran's current bilateral pes planus may have been aggravated during active military service. Based on the foregoing, the Board finds the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Such evidence is so significant that it must now be considered in order to decide fairly the merits of the claim. Accordingly, the Veteran's claim of entitlement to service connection for bilateral foot disorder is reopened. 38 C.F.R. § 3.156(a). IV. Merits of the Claim for Service Connection The Veteran contends that he is entitled to service connection for bilateral pes planus (flat feet). He asserts that his flat feet were permanently aggravated during military service. The medical evidence of record shows that the Veteran has received treatment for his pes planus during the appeal period. Thus, the Veteran has a current diagnosis of the claimed disability. The Board notes that a veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1) (2013). However, the recording of such a history in the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. The report of the Veteran's April 1978 entrance examination reflects that the Veteran was diagnosed with asymptomatic pes planus, not considered disqualifying (NCD) at that time. Accordingly, the Board finds that the Veteran's flat feet were noted at the time of his enlistment and therefore he is not entitled to the presumption of soundness. As pes planus was clinically noted on examination for entrance to service, the Veteran cannot bring a claim for service connection for this disorder on a direct-incurrence basis, but he may bring a claim for service-connected aggravation of his bilateral pes planus. See Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 202); 38 C.F.R. § 3.306 (2013). In this regard, a flare-up of symptoms, in the absence of an increase in the underlying disability, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); see also Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The burden is on the Veteran to show a chronic worsening of the pre-existing pes planus during service, because the Veteran's bilateral pes planus were noted at entrance. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); VAOPGCPREC 3-2003 (July 2003) (holding that section 1153 requires claimants to establish an increase in disability before VA incurs the burden of disproving aggravation). A review of the Veteran's service treatment records show that in April 1978, one week after entering military service, the Veteran complained of pain in the arch region that increased with marching and hard surfaces. He was diagnosed with pes planus that existed prior to service. The Veteran indicated that he would prefer to stay in service and he was returned to duty. The Veteran was given a medical profile of 3 for the lower extremities in June 1978 due to severe flat feet. He was medically qualified for duty with limitations. There was a notation that the profile is effective until the Veteran's Medical Board is completed. A June 1978 medical board evaluation reveals that the Veteran was diagnosed with moderately severe flexible bilateral flat feet. The medical board proceedings show that the Veteran had painful ankles for the past four years with an increase in symptoms since entering service. The Veteran reported that he had problems with his ankles and arches whenever he stood for long periods of time or was physically active. Thus, the service treatment records indicate that the Veteran's bilateral pes planus may have increased in severity during military service. Furthermore, the claims file contains a positive medical opinion from a private physician dated in October 2012. The physician reviewed the claims file and evaluated the Veteran's bilateral pes planus. Thereafter, he determined that the Veteran's current bilateral flat feet were aggravated by active military service. He explained that the Veteran's entrance examination in April 1978 noted that the Veteran had pes planus and it was described as asymptomatic. The Veteran sought treatment in April 1978 and he was diagnosed with symptomatic pes planus, but he was allowed to continue with training and remain in service. A follow-up examination in June 1978 revealed a worsening of the Veteran's condition with severe flexible flat feet. The Board finds that this opinion is persuasive and probative as the examiner reviewed the claims file and provided a clear explanation for his opinion based on the evidence of record and general medical knowledge. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In light of the foregoing, the Board finds that the evidence is at least in equipoise on whether the Veteran's current diagnosis of bilateral pes planus (flat feet) were aggravated by active military service. Accordingly, entitlement to service connection for bilateral pes planus is warranted. ORDER Having found that that the May 2001 rating decision that denied entitlement to service connection for bilateral flat feet was not clearly and unmistakably erroneous, the decision cannot be revised or reversed based upon CUE; the appeal is denied. New and material evidence having been submitted, the claim of entitlement to service connection for bilateral flat feet is reopened. Entitlement to service connection for bilateral pes planus (flat feet) is granted. REMAND With respect to the Veteran's service connection claim for a bilateral knee disability, he contends that his service-connected bilateral pes planus caused or aggravated his current bilateral knee disability. The medical evidence of record shows that the Veteran has a current diagnosis of bilateral patellofemoral syndrome with osteoarthritis. A private medical evaluation dated in October 2012 reveals that the physician noted that medical literature supports chronic gait disturbances such as ankle and feet disorders as etiologies of the Veteran's knee conditions. However, the physician noted that he can only speculate as to service connection for the bilateral knee conditions as the Veteran's morbid obesity is also a likely cause of the Veteran's bilateral knee conditions. As the evidence of record indicates that the Veteran's service connected bilateral pes planus may have caused or aggravated the Veteran's bilateral knee disability, a VA examination and opinion is necessary in order to fairly adjudicate the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate specialist with respect to the service connection claim for a bilateral knee disability. The claims file, including a copy of this Remand, must be made available to the examiner for review, and the examiner should indicate that the claims folder was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether any bilateral knee disabilities found on examination is at least as likely than not (i.e., a fifty percent or greater probability) caused by or aggravated (chronically worsened) by the Veteran's bilateral pes planus to include as due to any altered gait as a result of the pes planus. The examiner should provide a complete explanation for all conclusions reached and the foundation for all conclusions should be clearly set forth. 2. Upon completion of the foregoing, readjudicate the Veteran's claim based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant 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. 2013). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs