Citation Nr: 1338127 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-34 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for allergic rhinitis. 2. Entitlement to service connection for left ear serous otitis externa and media. 3. Entitlement to service connection for a left foot disorder, including osteoarthritis and pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant served in the Army Reserves for many years that included active duty for training (ACDUTRA) from March to April 1976 and from August to October 1976 as well as various periods of inactive duty training (INACDUTRA). In June 2013, a statement from the appellant was received in which she reported being unaware of the status of a claim she had filed previously for a skin disorder. The claim was denied in a March 2009 rating decision. Therefore, inasmuch as she seemingly is requesting reconsideration of this claim, the Board is referring this matter to the RO as the Agency of Original Jurisdiction (AOJ) for appropriate action since the Board does not presently have jurisdiction to consider this additional claim. And as for the claims that are currently before the Board, they are again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, since there was not compliance with the Board's prior February 2012 remand directives. REMAND Because there has not been compliance, even what could be considered acceptable substantial compliance, with the Board's prior February 2012 remand directives requesting clarification of the specific dates when the appellant was on ACDUTRA and INACDUTRA, and inadequate rationales in the reports of VA examinations, these claims are again REMANDED for the following additional development and consideration: 1. Clarify exactly when the Appellant was on ACDUTRA and INACDUTRA; that is, obtain the specific dates of her service in these capacities. These dates and differentiation between when she was on ACDUTRA versus INACDUTRA must be documented for VA examiners to consider. The Appellant's Leave and Earning statements do not provide all of this requested information. 2. Next arrange for a VA examination for ear diseases to determine the likely etiology of the appellant's claimed left ear disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner. Obtain a complete history from the appellant. a) Based on a review of the claims file and the examination, comment on the likelihood (very likely, as likely as not, or unlikely) the appellant's ear disease, diagnosed as left ear serous otitis externa and media, incepted during or is otherwise related or attributable to any period of ACDUTRA. [Note: since a disease, and not a injury, only her ACDUTRA service is potentially qualifying, not also her INACDUTRA.] b) A complete explanation of the underlying rationale of the opinion must be provided and, if necessary, reference specific findings in the record supporting conclusions. 3. Also arrange for a VA examination for the allergic rhinitis to determine the likely etiology of this condition and potential relationship with the Veteran's ACDUTRA, but not also INACDUTRA, service. The claims file and a copy of this remand must be made available to and reviewed by the examiner. a) Based on a review of the claims file and the examination, comment on the likelihood (very likely, as likely as not, or unlikely) the appellant's allergic rhinitis incepted during or is otherwise related or attributable to any period of ACDUTRA. [Note: since a disease, and not a injury, only her ACDUTRA service is potentially qualifying, not also her INACDUTRA.]. b) A complete explanation of the underlying rationale of the opinion must be provided and, if necessary, reference specific findings in the record supporting conclusions. 4. As well, arrange for a VA orthopedic examination to determine the likely etiology of the appellant's osteoarthritis and pes planus. The claims file and a copy of this remand must be made available to and reviewed by the examiner. a) Based on a review of the claims file and the examination, comment on the likelihood (very likely, as likely as not, or unlikely) the appellant's left foot osteoarthritis and pes planus incepted during or is otherwise related or attributable to any period of ACDUTRA. [Note: when making this determination, consider that service connection is permissible for disease or injury incurred in or aggravated during ACDUTRA, but only for injury, not disease, incurred or aggravated during INACDUTRA.]. In the case of the pes planus, consider that congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. The Court indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). Also according to the VA General Counsel 's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of this Appellant's claim as it pertains to this claimed disability of pes planus, medical clarification is necessary as to whether this condition is a congenital or developmental "disease" or "defect." See id; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If a "disease", an opinion is required as to whether it was as likely as not aggravated by her active military service beyond its natural progression. If instead a "defect", an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during her active military service that resulted in disability apart from the congenital or developmental defect. For reference, a "disease" is subject to periodic or intermittent improvement or worsening, whereas a "defect" is generally more static in nature. b) A complete explanation of the underlying rationale of the opinion must be provided and, if necessary, reference specific findings in the record supporting conclusions. 5. Ensure the reports of these examinations contain responses to the questions asked. If not, take corrective action. 38 C.F.R. § 4.2. 6. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and her representative another Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument concerning these claims the Board is remanding. 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. 2013). _________________________________________________ KEITH W. ALLEN 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).