Citation Nr: 18146475
Decision Date: 10/31/18	Archive Date: 10/31/18

DOCKET NO. 16-35 295A
DATE:	October 31, 2018
ORDER
1. The appeal of the issue of entitlement to service connection for a lumbar spine disability, to include arthritis, to include as secondary to service-connected disabilities, is dismissed.
REMANDED
2. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the left tibia is remanded.
3. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the right tibia is remanded.
4. Entitlement to service connection for a left knee disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
5. Entitlement to service connection for a right knee disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
6. Entitlement to service connection for a left ankle disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
7. Entitlement to service connection for a right ankle disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDING OF FACT
The Regional Office (RO) issued a Statement of the Case (SOC) in May 2016 and the Veteran did not file a timely Substantive Appeal (VA Form 9) as to the issue of entitlement to service connection for a lumbar spine disability, to include arthritis, to include as secondary to service-connected disabilities.
CONCLUSION OF LAW
The criteria for filing a formal appeal for an entitlement to service connection for a lumbar spine disability, to include arthritis, to include as secondary to service-connected disabilities, have not been met. 38 C.F.R. §§ 20.200, 20.202 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from July 1974 to September 1977.
1. Entitlement to service connection for a lumbar spine disability, to include arthritis, to include as secondary to service-connected disabilities 
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012).
An appeal consists of a timely filed Notice of Disagreement, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2017). A Substantive Appeal consists of a properly completed VA Form 9 (Appeal to the Board of Veterans’ Appeals) or correspondence containing the necessary information. 38 C.F.R. § 20.202 (2017).
In May 2016, the RO issued a statement of the case which addressed the issue. The Veteran did not thereafter file a VA Form 9 or any other substantive appeal of that issue. The Veteran filed a substantive appeal in July 2016; however, he indicated that he was appealing only the issues of (1) evaluation of residuals of stress fracture of the right tibia; (2) evaluation of residuals of stress fracture of the left tibia; (3) service connection for arthritis of the bilateral knees; (4) service connection for arthritis of the bilateral ankles; and (5) a total disability evaluation based on individual unemployability. The Veteran also did not discuss his lumbar spine in the substantive appeal, which tends to support that the Veteran was not seeking to continue his appeal for service connection for a lumbar spine disability. Therefore, an appeal does not exist on the issue of entitlement to service connection for a lumbar spine disability, to include arthritis, to include as secondary to service-connected disabilities. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed.
REASONS FOR REMAND
2. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the left tibia is remanded.
The Veteran contends that his residuals of stress fracture of the left tibia is worse than the disability rating currently assigned. The Veteran was last afforded a VA examination in September 2013 in order to establish the severity of his residuals of stress fracture of the left tibia and its related symptoms. In a June 2018 statement, the Veteran’s representative asserted that the last examination is too stale for evaluation purposes. Further, the representative indicated that when a veteran’s claim that his condition is worse than originally rated and the available evidence is too old for an adequate evaluation of the veteran’s current condition, VA’s duty to assist includes providing a new examination. The Board considers this an assertion that the Veteran’s service-connected residuals of stress fracture of the left tibia on appeal had worsened and a request for a new VA examination. Therefore, the Board will remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his residuals of stress fracture of the left tibia.
3. Entitlement to a disability rating in excess of 10 percent for residuals of stress fracture of the right tibia is remanded.
The Veteran contends that his residuals of stress fracture of the right tibia is worse than the disability rating currently assigned. The Veteran was last afforded a VA examination in September 2013 in order to establish the severity of his residuals of stress fracture of the right tibia and its related symptoms. In a June 2018 statement, the Veteran’s representative asserted that the last examination is too stale for evaluation purposes. Further, the representative indicated that when a veteran’s claim that his condition is worse than originally rated and the available evidence is too old for an adequate evaluation of the veteran’s current condition, VA’s duty to assist includes providing a new examination. The Board considers this an assertion that the Veteran’s service-connected residuals of stress fracture of the right tibia on appeal had worsened and a request for a new VA examination. Therefore, the Board will remand this matter to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his residuals of stress fracture of the right tibia.
4. – 5. Entitlement to service connection for a bilateral knee disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
The Veteran asserts that service connection for a bilateral knee disability is warranted because it was incurred in service or caused or aggravated by his service-connected residuals of stress fractures, right tibia and left tibia. 
Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury.
The Board finds that given an indication of a current diagnosis of a bilateral knee disability, specifically osteoarthritis shown in a September 2017 VA medical record, a VA examination is necessary to determine if the Veteran currently has a bilateral knee disability and its etiology, if applicable.
6. – 7. Entitlement to service connection for a bilateral ankle disability, to include arthritis, to include as secondary to service-connected disabilities, is remanded.
A determination with respect to the claims for (1) increased evaluation of residuals of stress fracture of the right tibia; (2) increased evaluation of residuals of stress fracture of the left tibia; and (3) service connection for a bilateral knee disability may have an impact upon consideration of the issue of entitlement to service connection for a bilateral ankle disability on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claims. As such, Board consideration of the merits of the Veteran’s service connection claim for a bilateral ankle disability is deferred pending adjudication of the Veteran’s claims indicated above.
8. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.
A determination with respect to the claims for (1) increased evaluation of residuals of stress fracture of the right tibia; (2) increased evaluation of residuals of stress fracture of the left tibia; (3) service connection for a bilateral knee disability; and (4) service connection for a bilateral ankle disability may have an impact upon consideration of the issue of entitlement to TDIU on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claims. As such, Board consideration of the merits of the Veteran’s TDIU claim is deferred pending adjudication of the Veteran’s claims indicated above.
The matters are REMANDED for the following action:
1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, related to treatment of his bilateral lower extremities should be obtained. Any negative response should be in writing and associated with the claims file.
In addition, obtain any outstanding VA treatment records and associate them with the claims file.
2. Schedule the Veteran for a VA examination to evaluate to determine the current severity of his service-connected residuals of stress fracture of the left and right tibia.
3. Schedule the Veteran for a VA examination for his claimed bilateral knee disability to determine the nature, extent, and etiology. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The Veteran’s claims file should be reviewed by the examiner in conjunction with the examination. The rationale for all opinions expressed must be provided.
The VA examiner’s attention is drawn to the following:
•	The Veteran served on active duty from July 1974 to September 1977.
•	The Veteran is currently service-connected for 1) residuals of stress fracture of the right tibia and 2) residuals of stress fracture of the left tibia.
The examiner is asked to answer the following questions:
a.	What are the Veteran’s current bilateral knee disabilities?
b.	For each diagnosed bilateral knee disability, the examiner is asked to address whether it is at least as likely as not (50 percent probability or more) incurred-in, caused by, or otherwise related to service? Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate
c.	If arthritis of the bilateral knees is found, but the answer to subparagraph (b) above is “no,” then the examiner is asked to address whether it is at least as likely as not that arthritis arose within one year of separation from active military service in September 1977 (thus, in approximately September 1978).
d.	If the answers to subparagraphs (b) and (c) are “no,” is the claimed bilateral knee disability at least as likely as not (50 percent or greater likelihood) caused by the service-connected residuals of stress fractures, left tibia and right tibia? Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate.
e.	If the answers to subparagraphs (d) is “no,” is the claimed bilateral knee disability at least as likely as not (50 percent or greater likelihood) aggravated (permanently worsened beyond the natural progression of the disease). Please explain your answer by citing to supporting clinical data and/or medical literature, as deemed appropriate.
f.	If the examiner finds that the service-connected residual of stress fracture of the left tibia and right tibia, permanently aggravates the claimed bilateral knee disability, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the bilateral knee disability prior to aggravation. If the examiner is unable to establish a baseline for the bilateral knee disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.
A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
4. Thereafter, the AOJ should complete any development deemed necessary, and based on the entirety of the evidence, readjudicate the claim of entitlement to service connection for a bilateral ankle disability.
5. Thereafter, based on the entirety of the evidence, readjudicate the claim of entitlement to TDIU.

 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	D. Cheng, Associate Counsel