Citation Nr: 1751476 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-03 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a right knee condition, secondary to service-connection bilateral pes planus. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant, J.S., and D.M. ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1994 to April 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In July 2016, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2016, the Board remanded the appeal for further development of the evidence. On March 20, 2017, the RO granted service connection for lumbosacral strain. The Veteran has not disagreed with either the effective date of service connection or the initial ratings assigned. Therefore, no further discussion is necessary in regards to the Veteran's claim for entitlement to service connection for a low back condition. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran's remaining service connection claim. The Veteran maintains that his pes planus caused or aggravated his right knee condition. A December 2013 VA examiner opined that "[t]he veteran's relatively minor degree of pes planus does not cause a significant enough derangement of gait to cause the veteran's patellar tendinitis knee condition." In January 2017, the Veteran was afforded another VA examination for his right knee condition. The examination report documented diagnoses of right knee meniscal tear, right knee joint osteoarthritis, and right patellar tendinitis. In the examination report, the VA examiner reiterated her December 2013 opinion. In addition, the examiner stated that "the Veteran's right knee injury as well as the expected 'wear and tear' of going up and down ship's ladders and stairs, is the most likely cause of his current degenerative right knee condition." As the December 2013 and January 2017 VA examiners did not address whether the Veteran's pes planus aggravated his right knee condition, the opinions are inadequate, and new opinion must be obtained related to this theory of entitlement. 38 C.F.R. § 310(b) (2017); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Accordingly, the case is REMANDED for the following action: 1. Update the file with any VA treatment records relevant to the Veteran's claims to the present. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following review of the claims file, the examiner should respond to the following: (a) Identity the Veteran's right knee condition by medical diagnosis. In determining whether the Veteran meets the criteria for a current diagnosis, please consider medical and lay evidence dated both prior to and since the filing of the claim for service connection. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. Please also note that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinion. (b) Please state whether it is at least as likely as not that the right knee condition was caused by a service-connected disability, to include the Veteran's bilateral pes planus? Please explain why or why not. (c) If not caused by a service-connected disability, is it at least as likely as not that the right knee condition has been permanently worsened beyond normal progression (as opposed to temporary exacerbations of symptoms) by a service-connected disability, to include the service-connected bilateral pes planus? Please explain why or why not. If the examiner finds that the right knee condition has been permanently worsened beyond normal progression (aggravated) by a service-connected disability, please describe the degree in aggravation beyond the baseline level of the right knee condition that is attributed to the service-connected disability (i.e. decrease range of motion, etc.). In addition, please specifically discuss the significance of: (1) December 2013 VA examination; (2) Dr. R.M.'s July 2014 medical opinion; and (3) January 2017 VA examination. 3. After completing the requested actions, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and her representative and afford them an opportunity to respond. Then, return the case to the Board, 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.S. §§ 5109B, 7112 (LexisNexis 2017). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252 (LexisNexis 2017), 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) (2017).