Citation Nr: 1333772 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-14 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to an initial evaluation in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Spinnicchia INTRODUCTION The Veteran served on active duty from September 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to have a hearing before the Board in September 2011. However, the Veteran informed the Board in July 2011 that he wished to cancel his September 2011 hearing and have his case adjudicated without a hearing. 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 Following review of the record, the Board finds that additional development is needed with respect to the Veteran's knee claims. In the Veteran's April 2012 statement, he contends that his right knee and left knee disabilities may be secondary to his service-connected bilateral pes planus. The Veteran has not been provided notice concerning establishing service connection on a secondary basis. Therefore, notice pursuant to the Veterans Claims Assistance Act (VCAA) should be provided concerning this theory of entitlement. The Board notes the Veteran submitted medical opinions from his primary care physician suggesting the Veteran's bilateral knee disability is related to strenuous activities in the military. The physician accepted the Veteran's report of knee pain during and ever since service, despite no complaints of any knee pain in that physician's treatment records from 2001 until 2008. Moreover, such statement is contrary to what the Veteran advised the 2009 VA examiner, wherein he reported his knee pain "really started about 10 years ago." Additionally, the private physician did not address the normal separation examination in 1976 showing no knee abnormalities or the Veteran's report in 2008 of "bumping" his left knee when he fell a few months prior in response to her question concerning prior injury. The Board notes that the Veteran's private family physician also offered an alternate theory that the Veteran's altered gait from flat feet has either caused or aggravated the Veteran's arthritis of the knees. However, there were no complaints of foot pain anywhere in that private physician's records from 2001 through 2008. Moreover, records from a different physician in June 2008 noted the Veteran's gait and ambulation was normal. In fact, the only mention of gait disturbance was due to the Veteran's left knee surgery as noted in a March 2008 physical therapy note. Accordingly, the Board finds that a VA examination and opinion is needed in this case on both direct and secondary service connection. Secondary service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. VA may grant service connection for disability caused by service-connected disability or for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002). Pursuant to 38 C.F.R. § 3.310, service connection not be awarded on an aggravation basis without the establishment of a pre-aggravation baseline level of disability which can be compared to the current level of disability. Pre-aggravation baseline level of disability should be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease. 38 C.F.R. § 3.310 (2013). In October 2010, the RO granted service connection for bilateral pes planus with an initial evaluation of a 10 percent. In March 2011, the Veteran submitted a timely notice of disagreement (NOD) with the evaluation assigned. When a claimant files a timely notice of disagreement, the RO must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. § 19.26 (2013). To date, the RO has not provided the Veteran with an SOC in regard to this issue. The United States Court of Appeals for Veterans Claims (Court) has indicated that when a claimant submits an NOD and the RO has not issued an SOC on that issue, remand for issuance of an SOC is required. Manlincon v. West, 12. Vet. App. 238, 240-41 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should undertake all actions required by 38 C.F.R. § 19.26, including issuance of an SOC so that the Veteran may have the opportunity to complete an appeal on the issue of an increased initial rating for pes planus (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board if a timely substantive appeal is filed. 2. Ask the Veteran to provide the names and addresses of all medical care providers, both VA and private, who have recently treated him for his bilateral knee disabilities. After securing the necessary release, the RO/AMC should request any relevant records identified. If any requested records cannot be obtained, the Veteran should be notified of such. 3. After the above has been completed to the extent possible, the Veteran should be scheduled for a VA knee examination by a physician. The claims file must be reviewed by the examiner. Following review of the claims file and examination of the Veteran, the examiner should respond to the following questions: a. Is it more likely (greater than 50% probability), less likely (less than 50% probability) or at least as likely as not (50/50 probability) that the Veteran's right knee disability and left knee disability are due to the heavy lifting and strenuous activities during his two years of active service? The examiner should explain the reasons for the conclusion, to include addressing the opinions of Dr. Roback and the 2009 VA examiner, as well as the separation examination, the first complaint in post service treatment records being in 2008, the notations of early arthritis and/or moderate arthritis in 2008, a torn meniscus, and a history of bumping the left knee in a fall in 2007. b. If not related to service, the examiner should then opine whether it is more likely, less likely, or at least as likely as not that the Veteran's left and right knee conditions are caused by his service connected foot/ankle disabilities. The examiner should explain the reasons for the conclusion reached, to include addressing Dr. Roback's November 2010 opinion. c. If not caused by service connected disabilities, the examiner should then opine whether it is more likely, less likely, or at least as likely as not that the Veteran's left and right knee conditions are permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by the service connected foot/ankle disabilities. The examiner should explain the reasons for the conclusion reached, to include addressing Dr. Roback's November 2010 opinion. If the examiner concludes there was a permanent worsening of the left and right knee conditions beyond normal progression (aggravation) the examiner should attempt to quantify the degree of aggravation beyond the baseline level of left and right knee disability. 4. The RO/AMC should then take any additional action that it deems proper with respect to the claims for service connection right and left knee disabilities. Thereafter, the case should be readjudicated. If the claims for service connection for right and left knee disabilities remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. 2012). _________________________________________________ K. A. BANFIELD 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).