Citation Nr: 1332325 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 11-23 156 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial, compensable rating for bilateral pes planus, prior to March 15, 2012. 2. Entitlement to a rating in excess of 50 percent for bilateral pes planus, from March 15, 2012, on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). 3. Entitlement to service connection for a low back disability, claimed as secondary to service-connected bilateral pes planus. 4. Whether new and material evidence to reopen a claim for service connection for a bilateral eye disability has been received. 5. Entitlement to service connection for bilateral eye disability. 6. Whether new and material evidence to reopen a claim for service connection for hay fever has been received. 7. Entitlement to service connection for a chronic upper respiratory disability, to include hay fever and allergies. 8. Whether new and material evidence to reopen a claim for service connection for cellulitis of the face has been received. 9. Entitlement to service connection for cellulitis of the face. 10. Whether new and material evidence to reopen a claim for service connection for fungus infection of the left foot. 11. Entitlement to service connection for bilateral foot fungus infection. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from March 1958 to March 1962. The appeal to the Board of Veterans' Appeals (Board) as to the issue of entitlement to service connection for low back disability arose from a March 2012 rating decision in which the RO denied entitlement to service connection for a low back disability. In March 2012, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in May 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2012. With respect to the remaining issues, this appeal to the Board arose from a November 2010 rating decision in which the RO granted service connection for bilateral pes planus and assigned a noncompensable rating, effective September 1, 2010 and denied the Veteran's petition to reopen the claims for service connection for eye condition, hay fever, cellulitis and fungus infection of the left foot as well as entitlement to service connection for right foot fungus. In January 2011, the Veteran filed a notice of disagreement. A SOC with respect to assignment of an increased rating for bilateral pes planus was issued in January 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2013. A SOC with respect to the remaining issues was issued in July 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2011. In his August 2011 and May 2012 substantive appeals, the Veteran requested a Board video-conference hearing before a Veterans Law Judge. However, prior to scheduling the hearing, in correspondence dated in July 2013, the Veteran's representative cancelled his hearing request. In September 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board observes that in a July 2012 rating decision, the RO granted a 50 percent rating for the Veteran's bilateral pes planus, effective March 15, 2012. In the January 2013 SOC, the RO characterized the issue pertaining the Veteran's bilateral pes planus as entitlement to an earlier effective date for the 50 percent rating assigned. However, as the record shows that in January 2011, the Veteran disagreed with the initial rating assigned following the grant of service connection for bilateral pes planus, the Board has characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating during the pendency of the appeal of 50 percent for the Veteran's bilateral pes planus, inasmuch as higher ratings for this disability are available, both before and after March 15, 2012, and the Veteran is presumed to seek the maximum available benefit for a disability, the Board has characterized the appeal as o the claim for pes planus as now encompassing the first and second two matters set forth on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, as the Veteran has been awarded the maximum rating possible as of March 15, 2012 under the rating criteria for bilateral pes planus under 38 C.F.R. § 4.71a, Diagnostic Code 5276, as explained further below, the Board has expanded the matter of entitlement to a rating in excess of 50 percent to reflect consideration of a higher rating on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). As regards to characterization of the appeal with respect to the requests to reopen, although the RO found that new and material evidence was not submitted, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen a claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claims has been received-and, in view of the Board's favorable disposition on the Veteran's request to reopen-the Board has characterized the appeal as now encompassing both the requests to reopen and the underlying claims for service connection, as set forth on the title page. In so doing, the Board has considered the recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In this case, the Veteran was previously denied service connection for eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot under the same general description based on the same incidents in service. As such, the Board finds, therefore, that the Veteran's current claims for service connection are not "new" claims, and that new and material evidence is required in order for the Board to consider the substantive merits of the claims for service connection. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims folder associated with the appellant's claims. With the exception of additional VA treatment records dated to June 2012, a review of the documents in such folder reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision reopening the claims for service connection for a bilateral eye disability, hay fever, cellulitis of the face and fungus infection of the left foot is set forth below. The remaining claims on appeal are addressed in the remand following the order. These matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. In a March 2004 decision, the Board denied claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot. 3. Evidence associated with the claims file since the March 2004 denial of the claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot, includes new evidence that relates to an unestablished fact necessary to substantiate each claim, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2004 decision in which the Board denied service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. As pertinent evidence received since the March 2004 denial is new and material, the criteria for reopening the claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot are met. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the Veteran's request to reopen the claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished. II. New and Material Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). By way of background, the Veteran original claim for service connection for hay fever and left foot fungus was denied by the RO in a June 1962 rating decision. The Veteran appealed this determination to the Board and in a January 1963 decision, the Board upheld the RO's denial, finding that the Veteran's hay fever preexisted service and was not aggravated during service, and determining that any left foot infection was not incurred in or aggravated in service. The RO again denied the Veteran's claim for service connection for hay fever in September 1991 and November 1998. The Veteran's filed another claim for service connection for these disabilities as well as for eye condition and cellulitis of the face in September 2002, which was denied by the RO in a November 2002 rating decision. The Veteran appealed this determination to the Board and in a March 2004 decision, the Board upheld the RO's denial. The Board found that new and material evidence had not been received to reopen claims for hay fever and left foot fungus and that an eye disorder and cellulitis of the face were not incurred or aggravated in service. As the Chairman did not order reconsideration of the Board's decision, and no other exception to finality is applicable, the Board's March 2004 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In this case, the Veteran sought to reopen his claims for service connection in September 2010. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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(a). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the previous Board denial, the evidence of record consisted of the Veteran's service treatment records, a May 1962 VA examination, VA treatment records, private treatment records, and the transcript of the July 2003 Board hearing testimony. Service treatment records document numerous complaints of hay fever and allergies as well as associated eye problems, as well as a notation of a six-year history of hay fever. The records also documented a foot fungus, an abscess of the left foot and cellulitis of the face. The May 1962 VA examiner diagnosed the Veteran with congenital cataract, bilateral, very mild, chronic catarrhal conjunctivitis, mild, vaso-motor rhinitis, chronic, deviation nasal septum, and chronic vaso-motor pharyngitis. With respect to the claimed foot fungus, the examiner found mild fungus infection, plantar and interdigital region of the left foot. However, no etiological opinions were provided. A May 1991 private treatment record documents that the Veteran was on prescription medication for his allergic symptoms. Again, no etiological opinion was provided. During the Board hearing, the Veteran reported that he still suffered from allergies and hay fever that first began in service. He also reported that he still experienced a rash on his face and feet and continued to have eye problems. Among the pertinent evidence added to the claims file since the March 2004 Board decision are additional VA treatment records, and the Veteran's statements. In his statements of record, the Veteran reiterated that his current disabilities are related to the incidents documented in his service treatment records, but now appears to assert continuing symptomatology since service. VA treatment records document current treatment for allergies and eye disorders. The Board finds that the above-described evidence provides a basis for reopening the claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot. The Board finds that the evidence is "new" in that it was not before the Board at the time of the March 2004 final denial of the claims for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it goes to the question of whether the Veteran has a bilateral eye disability, hay fever, cellulitis of the face and fungus infection of the left foot, that may be related to service. The medical records reflecting current disabilities, and the Veteran's current assertions as to continuity of symptomatology of symptoms allegedly related o such disabilities since service, raises a question as to whether his current disabilities are directly related to the incidents documented in his service treatment records. This evidence, while certainly not conclusive, relates to an unestablished fact necessary to substantiate the claim for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot (i.e., a current disability related to military service). Thus, when considered in light of the STRs, and presumed credible, this evidence raises a reasonable possibility of substantiating each previously denied claim for service connection. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot, are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claims for service connection for eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot has been received, to this limited extent, the appeal as to these matters is granted. REMAND As discussed above, the Board is reopening the Veteran's claims for service connection for an eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot; however, a review of the record reflects that the RO has not actually considered the claims for service connection on the merits. Under these circumstances, and to avoid any prejudice to the appellant, a remand for RO consideration of the reopened claim, on the merits, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993). Further, the Board's review of the claims file reveals that further RO action on the reopened claims, as well as the other claims on appeal is warranted. The Veteran currently asserts that his eye disorder, hay fever, cellulitis of the face and fungus infection of the left foot as well as fungus infection of the right foot manifested in service. As discussed above, the Veteran's service treatment records do document incidents pertaining to these disabilities and the Veteran asserts that he has current disabilities related to these incidents. However, the Veteran has not been afforded a VA examination with respect to these issues. VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one. McLendon, 20 Vet. App. at 83. Under the circumstances of this case, the Board finds that medical examination and opinion by an appropriate physician would be helpful in resolving the claims for service connection. With respect to his low back disability, the Veteran was afforded a VA examination in November 2011. The examiner opined that the Veteran's low back disability was less likely than not proximately due to or the result of the Veteran's service-connected bilateral pes planus. However, the examiner did not address whether the Veteran's low back disability was aggravated by his service-connected bilateral pes planus. See 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The Veteran has asserted that his low back disability is the result of his altered gait due to his bilateral pes planus; therefore, an opinion regarding aggravation is essential to the Board's adjudication. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Under these circumstances, the Board finds that a VA examination is needed to address whether the Veteran's claimed low back disability is secondary to his service-connected diabetes mellitus, type II. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83. As noted above, with respect to the claims for higher ratings for bilateral pes planus, the RO characterized the issue as one of entitlement to an earlier effective date for the 50 percent rating as opposed to a "staged" rating case pursuant to Fenderson, cited above. Thus, the RO has not actually considered the claims for higher ratings for the periods on appeal. Under these circumstances, and to avoid any prejudice to the appellant, a remand for RO consideration of whether a higher rating for the Veteran's bilateral pes planus is warranted at any point from the date of claim for service connection, is necessary. See Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, the Veteran has asserted that he has been entitled to at least a 50 percent disability rating prior to the current March 15, 2012 effective date for such rating as his symptoms have been the same throughout the course of the appeal. As such, a medical opinion would be helpful to determine at what point from the September 1, 2010 date of claim for service connection, the Veteran's bilateral pes planus had increased in severity. Finally, the Board notes that from March 15, 2012, the Veteran is receiving the maximum schedular rating possible for bilateral pes planus. In turn, the Veteran assertions regarding the impact of the disability on his employment appears to raise the question of his entitlement to a higher rating for bilateral pes planus on an extra-schedular basis. See 38 C.F.R. § 3.321 (2013). The Board has thus expanded the issue, accordingly. While the RO should consider whether the procedures to award a higher rating on an extra-schedular rating are invoked, in the first instance, to avoid any prejudice to the Veteran, the Board also finds that medical comment as to the impact of the Veteran's bilateral pes planus on his employability would also be helpful in resolving the claim. The Veteran is hereby notified that failure to report to the scheduled examination(s), without good cause, may result in denial of the original service connection claims and initial rating claims, and shall result in denial of the reopened claims. See 38 C.F.R. § 3.655(a),(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo examinations, to ensure that all due process requirements are met, and that the record before each examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. As regards VA records, the Veteran's Virtual VA folder currently includes outpatient treatment records dated since June 2012 from the Newington, Connecticut VA Medical Center (VAMC). However, more recent records from this facility may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Newington VAMC, all outstanding, pertinent records of evaluation and/or treatment of the Veteran since June 2012, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating the claims for higher ratings for pes planus, the RO should consider and discuss whether "staged rating" (assignment of different rating for different periods of time, based on the facts found), pursuant to Fenderson (cited above), is warranted, as well as whether a higher rating is warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Newington VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since June 2012. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide 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. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, 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. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA skin examination, by an appropriate physician, at a VA medical facility, to address the etiology of any claimed cellulitis of the face and bilateral foot fungus. The entire claims file, to include a complete copy of the REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all skin disability(ies) of the face and feet. Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include injury/complaints therein. In rendering the requested opinion, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to include service treatment records documenting foot fungus, left foot abscess and cellulitis of the face and the Veteran's assertions of continuing symptoms since the in-service incidents. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA eye examination, by an appropriate physician, at a VA medical facility, to address the etiology of any current eye disability. The entire claims file, to include a complete copy of the REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all eye disability(ies). Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include injury/complaints therein. In rendering the requested opinion, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to include service treatment records documenting eye complaints and the Veteran's assertions of continuing symptoms since the in-service incidents. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA respiratory examination, by an appropriate physician, at a VA medical facility, to address the etiology of any hay fever or allergies. The entire claims file, to include a complete copy of the REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all chronic upper respiratory disability(ies). Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, that addresses: (1) whether the disability clearly and unmistakably existed prior to service entrance, and, if so (2) whether the disability was clearly and unmistakably not aggravated (i.e., permanently worsened beyond the natural progression) during or as a result of service. For each upper respiratory found not to have clearly and unmistakably existed prior to service, the examiner is to opine as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any such disability had its onset in, or is otherwise medically-related to the Veteran's military service,, to include injury/complaints therein. In rendering the requested opinion, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to include service treatment records documenting treatment for allergies and hay fever and Veteran's assertions of continuing symptoms since the in-service incidents. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility, to address the etiology of any current low back disability. The entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current low back disability(ies). Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent or greater probability), that the disability: (a) was caused, or (b) is aggravated by (worsened beyond the natural progression) by the Veteran's service-connected bilateral pes planus. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering each requested opinion, the physician should specifically consider and discuss the post-service treatment records, as well as the Veteran's contentions. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 8. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the entire claims file, to include a complete copy of this REMAND, and copies of any pertinent Virtual VA records, to the individual who conducted the April 2012 VA orthopedic foot examination for review, and issuance of an addendum opinion. To the extent possible, the examiner should render specific findings with respect to the existence and extent (or frequency, as appropriate) for the period prior to March 15, 2012. The examiner is asked to address whether bilateral pes planus resulted in weightbearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, pronounced marked pronation, extreme tenderness of the plantar surfaces of the feet, or marked inward displacement and severe spasm of the Achilles tendon on manipulation not improved by orthopedic shoes or appliances. The examiner should also address whether the record reflects any change(s) in the severity of the Veteran's bilateral pes planus at any point since the Veteran's September 1, 2010 claim for service connection, and, if so, the approximate date(s) of any such change(s). The examiner should also address the impact of the Veteran's bilateral pes planus on his employability. If the April 2012 examiner is not available, or another examination is deemed necessary, arrange for the Veteran to undergo VA feet examination, by an appropriate physician, to obtain an opinion addressing the questions posed above. The entire claims file, to include complete copy of this REMAND, and copies of any pertinent Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 9. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 10. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 11. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims remaining on appeal.. If the Veteran fails, without good cause, to report to any examination scheduled in connection with any reopened claim(s), in adjudicating the claim(s), apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate each claim remaining on appeal in light(to include with respect to the claims for higher rating, consideration of whether any, or any further, staged rating, pursuant to Fenderson (cited above), is appropriate and whether a higher rating is warranted on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1)). 12. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and reflects review of all pertinent evidence of record (including VA medical records in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs