Citation Nr: 1804236 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-31 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for depression as secondary to a service-connected disability. 2. Entitlement to service connection for a psychiatric disability (other than posttraumatic stress disorder), to include depression and anxiety, and to include as secondary to a service-connected disability. 3. Whether new and material evidence has been received to reopen the claim for service connection for bilateral ankle disability as secondary to the service-connected bilateral knee disabilities. 4. Entitlement to service connection for a bilateral ankle disability, to include as secondary to a service-connected disability. 5. Whether new and material evidence has been received to reopen the claim for service connection for pes planus as secondary to the service-connected bilateral knee disabilities. 6. Entitlement to service connection for pes planus, to include as secondary to a service-connected disability. 7. Whether new and material evidence has been received to reopen the claim for service connection for bilateral foot bone spurs as secondary to the service-connected bilateral knee disabilities. 8. Entitlement to service connection for bilateral foot bone spurs, to include as secondary to a service-connected disability. 9. Entitlement to disability rating greater than 10 percent for bilateral plantar fasciitis. 10. Entitlement to a disability rating greater than 30 percent for patellofemoral syndrome, right knee with chondromalacia and subluxating patella. 11. Entitlement to a disability rating greater than10 percent for right knee arthritis. 12. Entitlement to a disability rating greater than 30 percent for patellofemoral syndrome, left knee with chondromalacia and subluxating patella. 13. Entitlement to a disability rating greater than 10 percent for left knee arthritis. 14. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound. 15. Entitlement to a disability rating greater than 40 percent for lumbosacral strain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to January 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. The Veteran testified at a Board hearing in July 2016. A copy of the hearing transcript is of record. In a March 2017 rating decision Agency of Original Jurisdiction (AOJ) granted the issue on appeal of entitlement to a total disability rating based on individual unemployability (TDIU) based on a combination of her service-connected disabilities and assigned an effective date, and the Veteran was provided notice of this determination in an April 2017 letter along with a copy of her appellate rights. To this date, the Veteran has not appealed this determination. Therefore, a matter regarding TDIU is not before the Board at this time. Further, in a February 2016 rating decision, the AOJ granted entitlement to service connection and assigned separate initial ratings and effective dates for left and right lower extremity radiculopathy associated with the Veteran's lumbar spine disability. The Veteran was provided notice of these determinations in a February 2016 letter along with a copy of her appellate rights. To this date, the Veteran has not appealed these determinations. Therefore, a matter regarding right and left lower extremity radiculopathy are not before the Board at this time. In November 2016, the Board denied the claim for an increased rating for bilateral plantar fasciitis and the applications to reopen prior claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs. The Board also remanded the remaining matters listed above. The Veteran then appealed the November 2016 Board denials. In October 2017, based on a Joint Motion for Partial Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) issued an Order vacating the Board's November 2016 determinations as to claim for an increased rating for bilateral plantar fasciitis and the applications to reopen prior claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, and remanded the matters to the Board for further development and readjudication. These matters are again before the Board for further appellate proceedings. The remaining claims that the Board remanded in November 2016 are again before the Board for further appellate proceedings. A matter regarding entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to the service-connected knee disabilities, has been reasonably raised by the Veteran in her November 2016 statements in her November 2016 VA spine examination. In the November 2016 VA spine examination, the VA examiner noted that the Veteran reported that the Cleveland Clinic told her that per a biopsy she has small fiber neuropathy (manifesting in pain in her legs), with etiology unknown, and that the Cleveland Clinic told her that the EMG was negative. The examiner noted that such neuropathy is not radiculopathy and is not associated with the lumbar spine disability. The Board also notes that a May 2016 VA Ann Arbor treatment record noted that a February 2016 EMG was negative for radiculopathy. The Veteran stated that she believes her neuropathy is due to her knee braces. This matter has not been addressed by the AOJ, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. As noted by the Board in its November 2016 decision, the matter regarding whether new and material evidence has been submitted to reopen a claim for service connection for posttraumatic stress disorder (PTSD) as a result of military sexual trauma, has been raised by the record in a July 2016 statement, but has not been addressed by the AOJ. This matter pertains to a claimed psychiatric disability with an alleged etiology that is distinct from the Veteran's claimed psychiatric disability that is currently on appeal. Thus, the Board does not have jurisdiction over the matter regarding PTSD, and it is again referred to the AOJ for appropriate action. The above-listed issues of entitlement to service connection, entitlement to increased ratings (other than the lumbar spine), and entitlement to SMC, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a July 2006 rating decision, the RO denied the claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, based on the determinations that depression is not related to service and was not caused or aggravated by a service-connected disability, that a bilateral ankle disability is not related to service and was not caused or aggravated by a service-connected disability, that pes planus is not related to service and was not caused or aggravated by a service-connected disability, and that the evidence does not show that the Veteran currently has bilateral foot bone spurs. 2. The Veteran did not submit a notice of disagreement against the July 2006 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs. 3. The additional evidence received since the July 2006 rating decision was not previously considered in that decision and raises a reasonable possibility of substantiating the claim for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs. 3. For the entire appeal period, the Veteran's lumbar spine disability is manifested by pain and forward flexion of the thoracolumbar spine limited to 30 degrees or less; but, unfavorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire spine, or incapacitating episodes of at least 6 weeks during the past 12 months, are not shown. CONCLUSIONS OF LAW 1. The July 2006 rating decision, which denied the claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, is final. 38 U.S.C.A. § 7105(c) (West 2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. The additional evidence received since the July 2006 rating decision is new and material to the claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, and these claims are reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for entitlement to a disability rating greater than 40 percent for the lumbar spine disability have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applications to Reopen Because the Board is reopening the previously denied claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, discussion concerning compliance with the duties to notify and assist, to include the duties prescribed under Bryant v. Shinseki, 23 Vet. App. 488 (2010), is not necessary with regard to these matters. As noted in the Findings of Fact above, the Veteran's claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs were previously denied in a July 2006 rating decision. The Board notes that at the time of July 2006 rating decision, the evidence of record included a September 2004 VA addendum medical opinion in which a VA psychologist noted that the Veteran's depression was related in part to the knee disabilities, but that there was no known ultimate causal relationship between the depression and the knee disabilities. As noted in the October 2017 JMR, the additional evidence received since the July 2006 rating decision includes the Veteran's testimony at the July 2016 Board hearing that she was informed by medical professionals that her depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs, were caused by her service-connected bilateral knee disabilities. This testimony is considered credible for purposes of reopening her claims. The Veteran's reported medical evidence in the July 2016 tends to indicate that the Veteran's depression, a bilateral ankle disability, and pes planus were caused by her service-connected knee disabilities, and such evidence is pertinent evidence that was absent at the time of the July 2006 decision, and this evidence raises a reasonable possibility of substantiating the claims for service connection for depression, a bilateral ankle disability, and pes planus. Further, the Veteran's reported medical evidence that tends to indicate that the Veteran currently has bilateral foot bone spurs is pertinent evidence that was absent at the time of the July 2006 decision, and this evidence raises a reasonable possibility of substantiating the claim for service connection for bilateral foot bone spurs. For these reasons, the Board finds that new and material evidence has been submitted, and the claims for service connection for depression, a bilateral ankle disability, pes planus, and bilateral foot bone spurs are reopened. Although the evidence is sufficient to reopen, it is not sufficient to grant the claims, and the claims on the merits are discussed in the Remand below. Lumbar Spine Evaluation In November 2016, the Board remanded the issue of increased rating for the lumbar spine disability and directed the AOJ to obtain outstanding VA medical records, including surgical records, and the AOJ did so. The Board also directed the AOJ to afford the Veteran a VA examination regarding the nature and severity of her lumbar spine disability. The Veteran was afforded a VA examination in November 2016, and the examiner provided the requested information. The claim was then readjudicated in a supplemental statement of the case. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board acknowledges that in the Veteran's VA lumbar spine examinations, the VA examiners each apparently did not consider lay evidence in the claims file in order to render an estimate as to the functional loss due to flare-ups, as prescribed under Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017. However, in this case, the Veteran has submitted extensive statements regarding the functional impact of her activities and of flare-ups on her lumbar spine function. The Board discusses the Veteran's reports of symptoms below, to include during flare-ups, and the Board expressly considers the Veteran's reports of functional loss due to the Deluca factors in further detail, below. Here, there is no indication in the record or by the Veteran that at any point during the appeal period, to include during flare-ups of pain during the appeal period, to show that she has such an additional loss of range of motion of the back that her back joints are functionally unable to bend at all. Indeed, the evidence throughout the appeal period shows that though her back's range of motion is severely limited, the lay and medical evidence shows she still retains some movement in her back. Further, the VA examinations, to include the November 2016 VA examination, provide information as whether the Veteran has any ankylosis, and the Veteran's lay statements, to include in the November 2016 VA examination, are sufficient to determine whether there is any ankylosis, to include during a flare-up, as discussed below. For these reasons, the below-discussed VA examinations are not rendered inadequate due to the examiners' failure to provide an estimate as to additional range of motion loss due to flare-ups of pain based on the Veteran's lay reports of flare-ups during this period. The Board also acknowledges that in the Remand below, it is directing the AOJ to obtain identified treatment records that may provide orthopedic findings pertinent to the lumbar spine. However, again, all of the extensive medical and lay statements that are associated with the claims file at this time shows that the Veteran retains some range of motion in her spine and that there is no ankylosis. There is also no indication from the Veteran, to include in her statements dating after the November 2016 VA spine examination, that her lumbar spine has worsened to the point that her spine is now fixed and can no longer bend at all, to include during any flare-ups. Because the issue of entitlement to an increased rating for the lumbar spine disability turns on whether there is ankylosis of the spine, and based on the extensive lay and medical evidence showing no indication of ankylosis at any point during the appeal period, the Board finds that any outstanding VA or private medical evidence would not possibly provide new information to show ankylosis and therefore would not possibly help to substantiate the Veteran's claim for an increased rating for the lumbar spine disability. Therefore, remand to obtain treatment records for purposes of adjudicating this claim is not necessary. The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist with regard to the claim for increased rating for the lumbar spine disability; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Lumbar Spine Disability Rating The Veteran contends that the rating for her lumbar spine disability during the appeal period does not accurately reflect the severity of her disability, and that her disability has gotten worse. The Veteran's lumbar spine disability is currently evaluated as 40 percent disabling for the entire appeal period, under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Evaluation of this disability under this diagnostic code is proper, as this diagnostic code contemplates the Veteran's lumbar spine disability diagnosis and symptoms, such as limitation of motion. As noted above, to the extent that the Veteran has reported bilateral lower extremity neuropathy, the Board has referred this matter to the AOJ for appropriate action. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See 38 C.F.R. § 4.71a, DC 5235-5243. When rated based on incapacitating episodes, a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243. Here, the Board acknowledges that the Veteran has competently and credibly reported that during flareups of pain, she must rest in bed, to include as much as four days a month, as noted in the November 2016 VA examination. The Board also acknowledges that the Veteran's history includes periods where her physician has told her not to work due to her disabilities, and that she is resting in bed, as reflected in the March 2009 Veteran statement. However, there is no indication in the medical record that the Veteran has had signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician having a total duration of at least six weeks during a twelve month period during the appeal period specifically due to her back disability (as opposed to nonservice-connected disability such as cardiac or pulmonary disability, for example). For these reasons, an increased rating based on incapacitating episodes is not warranted. Under the General Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (5): Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in more or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DC 5235-5243. Note (1): Objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5235-5243. Here, there is no lay contention or medical evidence to show an objective neurological abnormality associated with the lumbar spine disability (other than the right and left lower extremity radiculopathy that are not on appeal). To the extent that the Veteran claims compensation for bilateral lower extremity neuropathy symptoms, the Board has addressed that matter in the Introduction above and has referred it to the AOJ for consideration. Accordingly, no separate rating is warranted for any objective neurological abnormality (other than the radiculopathy not on appeal) associated with the lumbar spine disability. In evaluating any musculoskeletal disability, to include on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, pain on movement, restricted or excess movement of the joint, stiffness, swelling, incoordination, instability of station, disturbance of locomotion, weakness, fatigue, and lack of endurance, to include during flare-ups and with repetitive use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995) (the Deluca factors). The Veteran is competent to report her symptoms and functional impairments, such as severe back pain, to include pain radiating into the lower extremity, and back spasms, and the Board finds that her reports as to back symptoms are credible. The Board notes that the Veteran has objective limitation of motion of the thoracolumbar spine and severe pain during the entire appeal period. However, the Board finds that the current rating of 40 percent contemplates her symptoms and disability picture. The Board acknowledges that the Veteran has reported flare-ups, such as in the November 2016 VA examination, in which she states that she incapacitated due to pain about four days a month and therefore rests in bed. Also, the Veteran reported that the functional loss or functional impairment of her back in that she has difficulty with bending, walking, and standing. Also, in the September 2015 VA examination, the Veteran stated that she notices that with increased activity there is more discomfort in her back. The Veteran also reported stiffness in the September 2015 VA examination. The Board also acknowledges that the Veteran has reported, such as in her November 2016 VA examination, that she is "unable to bend to reach things," and that the Veteran reported in her February 2011 statement that she cannot bend to pick up anything or lift anything. Further, in the November 2016 VA examination, the Veteran stated that repetitive use testing was too painful, and that passive range of motion testing was too painful, and that nonweight-bearing testing was too painful. The Board also acknowledges that the September 2015 VA examiner noted that the Veteran would experience more pain with certain activities such as weight bearing activities, lifting, pushing, or carrying. The Board also notes that in a February 2016 treatment note from the Cleveland Clinic, the Veteran reported low back pain, which is increased with activities such as getting dressed, bathing, jerky movements, sitting, walking, standing, stairs, weather changing, and bending. She stated that the more she moves, the worse her pain gets. In her July 2016 Board hearing, the Veteran reported that on some days, she has periods of increased pain. She also testified, with regard to her ability to bend and flex her back, that it is "very limited" and that she can't do "real bending" as her bending ability is limited. She testified that more she moves round, the worse her pain gets. However, during the appeal period, the evidence shows that the Veteran's thoracolumbar spine disability is manifested by limitation of forward flexion of the thoracolumbar spine of 30 degrees or less when considering pain on motion, but also that she is able to at least retain some range of motion of the spine, even during flareups and even when impacted by the Deluca factors. See e.g., November 2016 VA examination (showing forward flexion limited to 20 degrees on active range of motion testing even though passive range of motion testing was too painful for her to perform). The Board acknowledges the Veteran's above-noted functional limitations (such as being unable to bend specifically to reach for things or to pick up things) due to pain, increased activity, certain activities such as weight-bearing activities, repetitive motion, stiffness, and flare-ups. However, despite her severe limitation of range of motion of the spine, there is no lay report to indicate that the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, even during the Veteran's reported flare-ups of pain or due to the Deluca factors. Significantly, though the Veteran finds passive range of motion testing, reaching, and nonweight-bearing testing too painful to perform, the evidence still shows she retains some ability to bend her spine. Significantly, further, there is no objective evidence of favorable or unfavorable ankylosis during the appeal period. For example, the November 2016 and September 2015 VA examiners each stated that there was no ankylosis of the thoracolumbar spine. For these reasons, the criteria for a rating greater than 40 percent have not been met or approximated at any point during the appeal period. At no point during the appeal period have the criteria for a rating greater than those discussed above been met or approximated. The Board has considered the applicability of the benefit of the doubt doctrine. However, because the preponderance of the evidence is against a finding that a rating greater than those discussed above are warranted, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). Entitlement to TDIU has been granted by the AOJ, SMC based on aid and attendance (or housebound) is addressed in the remand below, and neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record in conjunction with his claim for increased rating for the lumbar spine disability. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER As new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for depression, this claim is reopened. As new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a bilateral ankle disability, this claim is reopened. As new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral pes planus, this claim is reopened. As new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral foot bone spurs, this claim is reopened. Entitlement to a disability rating greater than 40 percent for lumbosacral strain is denied. REMAND As noted by the JMR, there may be outstanding VA medical records, specifically from the Flint VA Community Based Outpatient Clinic (CBOC) and the Detroit VA Healthcare System, that are relevant to the issues of service connection currently on appeal. The JMR also noted that the Veteran had testified at the Board hearing that she was informed by her physicians at the Cleveland Clinic that her foot and ankle conditions, as well as her depression, were secondary to her service-connected knees. Attempts should be made to obtain the below-identified records. Given the size of the Veteran's claims file, and to ensure that the record is complete, the Board will direct the AOJ to obtain all the below-identified potentially relevant records. Service Connection for a Psychiatric Disorder other than PTSD The Board has reopened the Veteran's claim for depression, and the Board has broadened this claim to include diagnoses shown in her VA treatment records. The Board notes that to the extent the Veteran has contended that she has a psychiatric disability that is due to an in-service sexual assault, the Board has referred that matter to the AOJ for appropriate action. The Veteran contends that she has a psychiatric disorder other than PTSD, specifically to include depression and anxiety, that is secondary to pain due at least in part to service-connected disabilities, as reflected in her February 2011 statement in which she states that her VA psychiatrist "feels that the pain and my depression are linked together and as such are part service-connected." Review of the Veteran's VA treatment records show that the Veteran's VA psychiatric providers have cited multiple contributing psychosocial stressors as well medical comorbidities. See e.g., February 2016 VA psychiatry note. The Board also notes that in a March 2016 Cleveland Clinic treatment record, the Veteran reported she is in a lot of pain and that "choosing not to take narcotics [to prevent addiction] is causing her anxiety and depression." The Board notes that the Veteran was afforded a VA examination in May 2006, in which the VA psychologist Dr. F. stated that the Veteran's major depression and anxiety are two diagnosable disabilities. Dr. F. stated that the Veteran's symptoms of major depression are likely to have multiple etiologies, but "the service-connected conditions aggravate and exacerbate the symptoms of major depressive disorder. Therefore, while there is not a direct causal link between the service-connected disabilities and the major depression symptoms, the pain experienced by the Veteran does exacerbate the symptoms of depression." Then, in a June 2006 addendum VA medical opinion by a different psychologist, Dr. D. opined that he cannot state "with any scientific assurity that the major depressive disorder is permanently aggravated by the pain problems," and he provided rationale. Notably, however, entitlement to service connection on a secondary basis does not require a "permanent" increase in severity in the claimed disability. Further, the revised version of 38 C.F.R. § 3.310 governs the Veteran's current claim on appeal for service connection for psychiatric disability. This regulation now requires that a "baseline level of severity" of the nonservice connected condition be established by medical evidence in order to award secondary service connection based on aggravation. The Board also notes that the Veteran was afforded a VA psychiatric examination in June 2004, in which the examiner stated that the Veteran becomes depressed after nonservice-connected headaches or during pain episodes. The examiner also stated that "the Veteran is found to suffer disability from mental illness incurred during military service." However, no rationale was provided to support this opinion, nor was any particular mental illness specified. Based on the record, it is unclear whether the Veteran's current psychiatric disability was caused or aggravated by her service-connected disabilities, to include due to pain therefrom. The Veteran should be afforded a VA examination to determine the same, to include whether the Veteran's service-connected disabilities aggravated her depression. Increased Rating for Bilateral Plantar Fasciitis and Service Connection for Bilateral Pes Planus and Bilateral Foot Bone Spurs The Board has reopened the claims for service connection for bilateral pes planus and bilateral foot bone spurs. The Veteran was last afforded a VA feet examination in September 2015 in conjunction with her claim for increased rating for bilateral plantar fasciitis. The examiner noted the diagnosis of plantar fasciitis, but then provided findings on symptoms and manifestations that are noted as being specifically associated with pes planus. The Veteran is currently not service-connected for pes planus, and the Board has reopened the claims for service connection for bilateral pes planus and bilateral foot bone spurs, above. The Board notes that there is no mention of bone spur in the September 2015 VA examination. Based on this evidence, it is unclear whether the Veteran's claimed pes planus is a progression of the plantar fasciitis, correction of an error in the prior diagnosis, or development of a new and separate condition. See 38 C.F.R. §§ 4.13, 4.125. It is also unclear which of the Veteran's foot symptoms may be attributed to her service-connected bilateral foot disability versus any nonservice-connected foot disability. See Mittleider v. West, 11 Vet. App. 181 (1998). The Board also notes the Veteran's contentions that her bilateral pes planus and bilateral foot bone spurs are secondary to her knee disabilities. Given these facts, the Veteran should be afforded a VA foot examination to determine not only the nature, symptoms, and severity of her service-connected bilateral foot disability, but to also determine the nature and etiology of any foot disability that is found to be separate and distinct from her service-connected foot disability. Service Connection for a Bilateral Ankle Disability The Board has reopened the claim for service connection for bilateral ankle disability, as discussed above. The Veteran contends that she has a bilateral ankle disability that is related to service or secondary to a service-connected disability. The Board notes that the Veteran has reported ankle symptoms, and that a diagnosis of bone spurs on the heels was shown in a May 2004 VA examination. However, the current nature of any bilateral ankle disability is unclear. The Veteran's should be afforded a VA examination to determine the nature and etiology of any bilateral ankle disability. Increased Rating for Left and Right Knees Patellofemoral Syndrome with Chondromalacia and Subluxating Patella Per the Board's November 2016 remand directives, the AOJ afforded the Veteran a VA bilateral knee examination in November 2016. However, the VA examiner noted that the Veteran did not have a history of recurrent subluxation, and the examiner completed two out of the four knee instability tests, but did not explain why two tests were not necessary. The Veteran is service-connected for subluxating patella of the bilateral knees, and she has a medical history of the same shown by the evidence. Because November 2016 VA examiner did not provide enough detail for purposes of rating the Veteran's bilateral knee disability, and because the November 2016 VA examiner did not appear to acknowledge the Veteran's history of subluxating patella, the Veteran should be afforded a new VA bilateral knee examination to determine the severity of her bilateral knee disability. SMC Based on Aid and Attendance or Housebound At this time, it is unclear whether the Veteran requires regular aid and attendance or is housebound in fact due to her service-connected disabilities alone. The Veteran was last afforded a VA examination regarding this matter in November 2016. The examiner stated that she is independent in her activities of daily living, and that she has a home health aide who help with the laundry, due to stairs [to the laundry room]. The aide also takes out her trash and "other physical home things." The examiner stated that she can walk and that she can drive and that she lives independently. Under "self-care skills," the examiner stated that the Veteran can perform all functions. The examiner opined that aid and attendance is not needed. However, these findings are not reconciled with the Veteran's reports as to how she is assisted by home aides for bathing, dressing, and grooming. See e.g., February 2016 VA psychiatry note. Further, this examiner's opinion is not reconciled with the Veteran's reports as to the extent of her functional impairments around the house and how much she receives assistance from family in addition to the home health aide. See e.g., September 2009 Veteran statement (stating that her siblings help her day to day). The Board also notes that the Veteran's representative noted the Veteran is bedridden due to her service-connected disabilities for an average of four days a month. See October 2017 Informal Hearing Presentation. The Veteran also reported being housebound at times due to her disabilities. See e.g., April 2009 Veteran statement. Based on these statements, the Board has broadened the issue regarding SMC based on aid and attendance to include the next lower level of this same SMC benefit, SMC based on being housebound. See Akles v. Derwinski, 1 Vet. App. 118 (1991). The Board notes that the evidence shows that the Veteran has recurrently reported that the pain in her leg, her psychiatric symptoms, and her nonservice-connected migraines significantly impair her ability to perform daily activities. See e.g., September 2009 Independent Living Assessment Report. In a September 2009 Medical Statement for Consideration of Aid and Attendance, it is noted that the Veteran has poor balance due in part to nonservice-connected hip disability. She has also reported significant impairment due to nonservice-connected cardiac disability and multiple other nonservice-connected disabilities. See e.g., August 2009 VA treatment records (stating that her sister helps her with bathing and noting that in addition to her knee impairments, she also suffers from non-service-connected Osgood-Schlatter Disease, hypothyroidism, asthma, obesity, and PTSD; also noting that due to her shortness of breath, obesity, and arthritis, she is limited in her ability to use the stairs). Given that the Board has referred matters regarding bilateral lower extremity neuropathy and a psychiatric disability to the AOJ for further action, the Board defers this matter pending adjudication of those referred matters, and also pending further development of the issues currently on appeal which the Board has remanded, as such development may provide new information to substantiate entitlement to SMC. Accordingly, the case is REMANDED for the following action: 1. Please contact the Veteran and request that she provide information as to any outstanding non-VA treatment records, pertinent to her claimed psychiatric disability, bilateral ankle disability, pes planus, bilateral foot bone spurs, plantar fasciitis, and bilateral knee disabilities. Please take appropriate efforts to obtain treatment records from the following: a. All treatment records from Cleveland Clinic. b. Any other relevant private treatment provider. All attempts to fulfill this development should be documented in the claim file. The Veteran should be asked to authorize the release of any outstanding pertinent non-VA medical records. 2. Please obtain updated VA treatment records from the Ann Arbor VA Healthcare System and the Toledo VAMC. Please also obtain ALL VA treatment records from the Flint VA Community Based Outpatient Clinic (CBOC), and from the Detroit VA Healthcare System. Please also obtain any other outstanding VA treatment records. All attempts to fulfill this development should be documented in the claim file. Please associate these records with the claims file. 3. When appropriate, provide the Veteran with notice pursuant to 38 C.F.R. § 3.159(e) with regard to any unavailable records. 4. After completing directives 1-2, please schedule the Veteran for a VA examination with a physician to determine the nature and severity of the left knee and right knee disabilities. Forward the claims file to the examiner for review of the case. The examiner is asked to perform all necessary testing, specifically to include joint testing for pain on both active and passive motion, and on weight bearing and non-weight bearing, as is required under Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should obtain a complete history from the Veteran regarding the symptoms associated with the right and left knee disability, to include the frequency, duration, characteristics, severity, or functional loss associated with the condition and with flare-up of the disability. The examiner is also asked to address the current nature, severity, and all symptoms of the Veteran's right and left knee disability. For purposes of the opinion, please include the following: (a) Please note the extent of limitation in terms of degree of limited range of motion. The examiner should also set forth the extent of any functional loss present due to weakened movement, excess fatigability, incoordination, or pain on use. Any additional impairment on use or in connection with any flare-up should be described in terms of the degree of additional range-of-motion loss. If such is not possible without resorting to speculation, please explain why this is the case. (b) Please comment whether there is recurrent subluxation or lateral instability of the left knee and/or right knee, and if so, the degree of severity thereof (slight, moderate, or severe). The examiner's attention is invited to the Veteran's history of bilateral subluxating patella. The examiner's attention is also invited to the Veteran's contention of "loose knee caps." Please note that the November 2016 VA knees examination did not provide enough detail and does not appear to acknowledge the Veteran's history of recurrent subluxation. The examiner erroneously noted that the Veteran did not have a history of recurrent subluxation, and the examination reflected that the examiner completed only two out of the four knee instability tests, but did not explain why. (c) Please comment on whether the right knee or left knee cartilage is semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. The examiner's attention is invited to the Veteran's report that up to four days a month, her flare-ups render her unable to walk at all, and to the Veteran's reports of falls and her knees "giving out all the time." The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 5. After completing directives 1-2, please schedule the Veteran for a VA examination with a physician to determine the nature, severity, and etiology of the Veteran's bilateral foot disability. a. The examiner is asked to specify the nature and diagnosis(es) of the Veteran's current bilateral foot disability. The examiner's attention is invited to the claimed bone spurs, and pes planus. b. The examiner is asked to please address all the current symptoms and severity of the Veteran's service-connected bilateral foot disability. For purposes of this opinion, the examiner is asked to reconcile the current bilateral foot diagnosis(es) with the diagnosis for which service-connection was originally granted, namely bilateral plantar fasciitis. The examiner is asked to consider whether any change in diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. Also, for purposes of this opinion, the examiner is requested to attempt (to the extent possible) to distinguish the effects of the service-connected right and/or left foot disability and any completely separate and distinct foot disability. The examiner is asked to note if it is not possible to attribute the Veteran's symptoms to each disability separately. The examiner is reminded that the Board seeks these medical opinions because the Veteran seeks compensation for ALL of her reported foot symptoms and functional impairments (e.g., pain, swelling, fallen arches, pronation). However, at this time, she is currently specifically service-connected for plantar fasciitis, and the Board is not competent to determine which symptoms are medically attributable to her service-connected bilateral foot disorder, nor is the Board competent to determine whether the Veteran's claimed pes planus and bilateral foot spurs are in any way related to her plantar fasciitis. c. For each above-diagnosed foot disability (e.g., pes planus, bilateral foot spurs) that is a completely separate and distinct disability from the service-connected foot disability, the examiner is asked please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any such foot disability is etiologically related to service. d. For each above-diagnosed foot disability (e.g., pes planus, bilateral foot spurs) that is a completely separate and distinct disability from the service-connected foot disability, and that is not related to service, the examiner is asked please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any such foot disability was caused or aggravated by a service-connected disability (e.g., knee or back disability). If, and only if, aggravation is found, the examiner should address the following medical issues to the extent possible: (b) the baseline manifestations of the such diagnosed foot disability found prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The term "aggravated" is defined as "any increase in severity" of the claimed disability, and any such increase in severity is not due to the natural progress of the claimed disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After completing directives 1-2, please schedule the Veteran for a VA examination with a physician to determine the nature and etiology of a bilateral ankle disability. a. The examiner is asked to specify the nature and diagnosis(es) of any bilateral ankle disability. The examiner's attention is invited to the claimed diagnosis of bone spurs on the heels, which was noted in a May 2004 VA examination. If there is no present ankle disorder, the examiner is asked to please reconcile this finding with the Veteran's reported bilateral ankle symptoms. b. For any diagnosed ankle disorder, the examiner is asked please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any such diagnosed ankle disorder is etiologically related to service. c. For any diagnosed ankle disorder that is not related to service, the examiner is asked please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any such diagnosed ankle disorder was caused or aggravated by a service-connected disability. If, and only if, aggravation is found, the examiner should address the following medical issues to the extent possible: (b) the baseline manifestations of the such diagnosed ankle disability found prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The term "aggravated" is defined as "any increase in severity" of the claimed disability, and any such increase in severity is not due to the natural progress of the claimed disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 7. After completing directives 1-2, please schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of a psychiatric disability other than PTSD. The examiner should be notified that the matter of whether a psychiatric disorder is specifically related to an alleged in-service sexual assault is not on appeal at this time. a. The examiner is asked to specify the nature and diagnosis(es) of the Veteran's psychiatric disability. The examiner 's attention is invited to the diagnoses of anxiety, panic disorder with agoraphobia, and major depressive disorder. See e.g., June 2016 VA treatment record. b. The examiner is asked please opine whether it is at least as likely as not (a probability of 50 percent or greater) that any such psychiatric disability was caused or aggravated by service-connected disability or disabilities, to include as due to pain therefrom. If, and only if, aggravation is found, the examiner should address the following medical issues to the extent possible: (b) the baseline manifestations of the such diagnosed psychiatric disability found prior to aggravation; and (b) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The term "aggravated" is defined as "any increase in severity" of the claimed disability, and any such increase in severity is not due to the natural progress of the claimed disability. The examiner's attention is invited to the following: a. The Veteran's reports of continuing emotional and psychiatric symptoms since onset in service, and the Veteran's reports as to the effects of her pain on her psychiatric condition. b. The VA examination in May 2006, in which the VA psychologist Dr. F. opined "the service-connected conditions aggravate and exacerbate the symptoms of major depressive disorder." Please note that the June 2006 addendum VA medical opinion by Dr. D. is problematic because he opined that he cannot state "with any scientific assurity that the major depressive disorder is permanently aggravated by the pain problems." Notably, the entitlement to service connection on a secondary basis does not require a "permanent" increase in severity in the claimed disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 8. Conduct any development deemed necessary with regard to the matter of entitlement to SMC based on aid and attendance or housebound. 9. After completing any other development deemed necessary, adjudicate the matters on appeal, and furnish the Veteran and her representative a supplemental statement of the case if a matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs