Citation Nr: 18155066 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-43 549 DATE: December 4, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a bilateral foot disability is granted. New and material evidence has not been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability; as such, the petition to reopen the claim is denied. Entitlement to service connection for hemorrhoids is denied. Entitlement to service connection for a cervical spine disability is denied. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected lumbar spine disability, is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for bronchitis is remanded. Entitlement to a rating higher than 10 percent for musculoligamentous right knee strain, patella tendonitis is remanded. Entitlement to a higher rating for instability of the right knee, currently rated as noncompensable prior to May 28, 2015, and 20 percent thereafter, is remanded. Entitlement to a higher rating for instability of the left knee, currently rated as noncompensable prior to May 28, 2015, and 20 percent thereafter, is remanded. Entitlement to an effective date earlier than July 11, 2015, for the grant of entitlement to a TDIU, to include as due to clear and unmistakable error (CUE) is remanded. FINDINGS OF FACT 1. In a May 2007 rating decision, the regional office (RO) denied a claim of entitlement to service connection for foot problems. This decision was not appealed nor was additional evidence received within the appeal period. 2. Evidence received since the May 2007 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral foot disability, and raises a reasonable possibility of substantiating the claim. 3. In a December 2001 rating decision, the RO denied a claim of entitlement to service connection for a bilateral hearing loss disability. This decision was not appealed nor was additional evidence received within the appeal period. 4. In a May 2007 rating decision, the RO declined to reopen a claim of entitlement to service connection for a bilateral hearing loss disability. This decision was not appealed nor was additional evidence received within the appeal period. 5. Evidence received since the May 2007 rating decision is cumulative and redundant of the evidence of record at the time of the decision and therefore does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral hearing loss disability. 6. The preponderance of the evidence is against finding that hemorrhoids began during active service, or are otherwise related to an in-service injury, event, or disease. 7. The preponderance of the evidence is against finding that the Veteran has a cervical spine disability due to an in-service injury, event, or disease, to include an in-service motor vehicle accident. CONCLUSIONS OF LAW 1. A May 2007 rating decision, which in relevant part denied service connection for foot problems, is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 2. Evidence added to the record since the May 2007 denial is new and material, and the claim for entitlement to service connection for a bilateral foot disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 3. A December 2001 rating decision, which in relevant part denied service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2001); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 4. A May 2007 rating decision, which in relevant part denied service connection for bilateral hearing loss, is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 5. New and material evidence has not been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 20.1105 (2018). 6. The criteria for service connection for hemorrhoids are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 7. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to February 1998. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015 and October 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). With respect to the Veteran’s claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2018). New and Material Evidence A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the appellant’s claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). This evidence is presumed credible for the purposes of reopening an appellant’s claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether new and material evidence has been received to reopen a claim, the Court has indicated that there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when he has provided new and material evidence as to another missing element). Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C. § 5108 (2012); Evans v. Brown, 9 Vet. App. 273 (1996). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability The Veteran has put forth new and material evidence relating to a current foot disability. The Board finds that this evidence meets the low threshold to be sufficient to reopen the claim. The Board recognizes that the RO adjudicated the Veteran’s claim de novo, which indicates that the claim was reopened. However, regardless of whether the AOJ granted or denied an application to reopen, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection for foot problems was denied by a May 2007 rating decision, finding no evidence that the Veteran’s pre-existing pes planus was permanently aggravated beyond its natural progression during service, and no evidence of a current chronic foot disability, noting that the treatment for foot issues during service appeared indicative of acute foot problems rather than chronic disability. No appeal was taken from this May 2007 rating decision, and new and material evidence was not received within the one-year appeal period. As such, the decision is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). Since the last final denial, VA has received a June 2015 Disability Benefits Questionnaire (DBQ) completed by a private physician, finding flat foot as well as plantar fasciitis. This evidence is relevant to the existence of a current foot disability. The evidence thus relates to an unestablished fact necessary to substantiate the Veteran’s claim, and raises a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156, 4.125(a) (2018). Therefore, the evidence is new and material. Such new and material evidence having been received, the claim of entitlement to service connection for a bilateral foot disability is reopened. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral hearing loss disability VA has not received new and material evidence sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. A December 2001 rating decision denied service connection for bilateral hearing loss on the grounds that the Veteran did not have a current hearing loss disability. No appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period. As such, that decision is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2001); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). A May 2007 rating decision declined to reopen the claim of entitlement to service connection for bilateral hearing loss on the grounds that no new and material evidence had been received sufficient to reopen the claim. No appeal was taken from that determination, and new and material evidence was not received within the one-year appeal period. As such, that decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006); currently 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). Since the May 2007 final denial, VA has received VA treatment records. However, these treatment records do not contain evidence of a current hearing disability for VA purposes, and VA has not received any other evidence indicative of a current hearing disability. Therefore, the Veteran’s treatment records are cumulative and redundant of evidence already in the record. Thus, the evidence added to the record since the May 2007 final denial does not relate to an unestablished fact necessary to substantiate the claim of service connection for a bilateral hearing loss disability, and does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). Accordingly, the claim of entitlement to service connection for a bilateral hearing loss disability is not reopened. As new and material evidence to reopen the finally disallowed claim of entitlement to service connection for a bilateral hearing loss disability has not been received, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). 3. Entitlement to service connection for hemorrhoids The Veteran contends that he should be service-connected for hemorrhoids. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of hemorrhoids, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d) (2018). The Veteran’s service treatment records (STRs) do not contain any reference to hemorrhoids. The Veteran has not asserted that his hemorrhoids began in service or identified any event in service that he believes caused his hemorrhoids. A VA examination was not conducted as to hemorrhoids. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there is otherwise sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5013A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In this case, a VA examination is not required because there is no competent or credible evidence of an in-service event or association with service. While the Veteran believes his hemorrhoids are related to service, the Veteran as a layperson is not competent to relate his current diagnosis of hemorrhoids to his active service. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Accordingly, in the absence of evidence of an in-service event or injury and competent evidence indicating that the Veteran’s current disability is related to service, service connection is not warranted. As the preponderance of the evidence is against the Veteran’s claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102, 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for a cervical spine disability The Veteran asserts that his cervical spine disability was caused by a motor vehicle accident that he experienced during his active service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of cervical strain, and his STRs document treatment for neck pain following an in-service motor vehicle accident and a report of neck pain following a lifting injury, the preponderance of the evidence weighs against finding that the Veteran’s current cervical spine disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d) (2018). VA and private treatment records show the Veteran was not diagnosed with a cervical spine disability until September 2013, many years after his separation from service. The June 2015 examination report also indicates that the Veteran stated that his neck started bothering him in around 2013. A February 2015 VA examiner discussed the Veteran STRs, which noted his report of neck pain related to a motor vehicle accident, cephalgia, and neck pain following lifting, and also noted the Veteran’s report of intermittent stress/tension like neck pain over the years, but determined that the Veteran’s STRs do not support finding that the Veteran’s neck condition was at least as likely as not caused by the neck complaints during service claimed in-service injury, event, or illness. In June 2015 another VA clinician also provided a negative opinion, stating that there is no possibility that the motor vehicle accident during service would be the cause of the current findings. The clinician opined that the Veteran’s current x-ray and MRI findings were related to natural progression, and were normal age-related findings. On that basis, the clinician opined that the Veteran’s current condition was less likely than not incurred in or caused by an in-service injury, event, or disease. The examiners’ combined opinions are highly probative because they are based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his current neck or cervical spine disability is related to an in-service injury, event, or disease, including the motor vehicle accident, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing and the etiology of cervical spine disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examinations of record. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102, 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability, to include as secondary to service-connected lumbar spine disability is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected lumbar spine disability is remanded. The June 2015 examination report stated that the examiner did not feel she could provide an opinion in spite of the medical records because the Veteran had extreme symptom magnification and it was very difficult to conduct range of motion testing with this Veteran. Unfortunately, this opinion does not explain why the difficulty in testing range of motion prevents the examiner from providing the requested etiological opinion. Upon remand, a supplemental medical opinion should be obtained that provides an etiological opinion if possible, and if not possible, clearly explains whether this inability is due to limitations of knowledge in the medical community at large, or whether it is due to an inability to determine particular facts that are necessary to provide the requested opinion. Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Entitlement to service connection for a bilateral foot disability is remanded. The February 2015 VA examination provided a negative opinion as to pes planus because the Veteran’s foot examination was within normal limits, but did not provide an opinion as to plantar fasciitis because the examiner found no evidence plantar fasciitis. Subsequently, a June 2015 private Disability Benefits Questionnaire (DBQ) diagnosed the Veteran with flat foot as well as plantar fasciitis, and discussed the Veteran’s current symptoms. Accordingly, an addendum opinion should be obtained that discusses the current diagnosis of plantar fasciitis as well as the symptoms of flat foot noted in the June 2015 DBQ. 4. Entitlement to service connection for bronchitis is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for bronchitis because no VA examiner has opined whether the Veteran’s bronchitis is due to the upper respiratory symptoms documented in the Veteran’s STRs. Accordingly, a remand for a VA examination and opinion are required. 5. Entitlement to a rating higher than 10 percent for musculoligamentous right knee strain, patella tendonitis is remanded. 6. Entitlement to a higher rating for instability of the right knee, currently rated during the period on appeal as noncompensable prior to May 28, 2015, and 20 percent thereafter, is remanded. 7. Entitlement to a higher rating for instability of the left knee, currently rated during the period on appeal as noncompensable prior to May 28, 2015, and 20 percent thereafter, is remanded. The Veteran’s July 2015 application for a TDIU noted that he was treated for his knee disabilities by Dr. S.W. from July 2014 to May 2015. Although the record contains private DBQs completed by Dr. S.W., it does not contain any treatment records or progress notes. Thus, a remand is required to allow VA to obtain authorization and request these records. As the Board is remanding these claims for other development, on remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected right and left knee disabilities. The Veteran is advised that the failure to report for a VA examination or to cooperate with the VA examiner and fully participate in the examination could negatively affect his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”); see also 38 C.F.R. § 3.655(b) (2018). As the record indicate that the Veteran receives ongoing VA treatment, the record should also be updated to include any VA treatment records compiled since October 2, 2014. 8. Entitlement to an effective date earlier than July 11, 2015 for the grant of entitlement to a TDIU, to include as due to CUE is remanded. By way of history, the Board notes that the Veteran was initially denied entitlement to a TDIU in a May 2007 rating decision, and was again denied entitlement to a TDIU in a November 2012 rating decision. Neither of these rating decisions were appealed, nor was new and material evidence received within one year of either decision, and they became final. A May 2015 rating decision granted entitlement to service connection for depressive disorder, effective September 4, 2014. In July 2015, the RO assigned a new effective date of July 1, 2009. The Veteran was granted entitlement to a TDIU in an October 2015 rating decision effective July 11, 2015. In an October 2015 notice of disagreement (NOD), the Veteran argued that he should receive an effective date back to December 2010 because of CUE. The Board acknowledges that the argument laid out in the NOD and in an August 2018 statement is less clear than is ideal, but, out of respect for the Board’s obligation to read pro se filings liberally, the Board will remand this claim to ensure that the Veteran’s argument is fully addressed and developed. See Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir. 2009); Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). The Veteran essentially argues that because the July 2015 rating decision assigned a new effective date of July 1, 2009, he was service-connected for depressive disorder at the time of the November 2012 denial of TDIU. Therefore, the failure of the November 2012 rating decision to consider the service-connected depressive disorder when denying entitlement to a TDIU was CUE. The Veteran essentially contends that the fact that the October 2015 rating decision considered his depressive disorder and granted entitlement to a TDIU indicates that, had the November 2012 rating decision considered his depressive disorder, he would have been granted TDIU in the November 2012 rating decision. Additionally, an August 2018 statement seems to argue that the November 2012 denial was a result of the failure to apply 38 C.F.R. § 3.303(b), the chronic disease presumption. The November 2015 statement of the case (SOC) addresses whether there was a CUE in the effective date for TDIU assigned by the October 2015 rating decision, but does not adjudicate whether there was CUE in the November 2012 rating decision denying entitlement to a TDIU. Because the Veteran’s argument that there was CUE in the November 2012 rating decision denying entitlement to a TDIU has not been adjudicated by the agency of jurisdiction (AOJ) in the first instance, the Board does not presently have jurisdiction over it. Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006) (en banc) (providing that the Board lacks jurisdiction over any theory of CUE that has not been adjudicated by the AOJ in the first instance); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). The issue of whether there is CUE in the November 2012 rating decision denying entitlement to a TDIU could significantly impact a decision on the issue of entitlement to an effective date earlier than July 11, 2015, for entitlement to a TDIU, which means that the issues are inextricably intertwined. A remand of the claim of entitlement to an effective date earlier than July 11, 2015, for entitlement to a TDIU is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. S.W., the physician identified as treating the Veteran’s knee disabilities from July 2014 to May 2015 per the July 2015 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Make two requests for the authorized records from Dr. S.W. unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from October 2, 2014 to the present. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left and right hip disabilities are at least as likely as not (50 percent or greater probability) proximately due to service-connected chronic musculoligamentous lumbar strain with chronic lumbago or aggravated beyond its natural progression by service-connected chronic musculoligamentous lumbar strain with chronic lumbago. Any opinion offered must be supported by a complete rationale. If the clinician finds that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any foot disability, to include pes planus and plantar fasciitis. If the examiner does not find a diagnosis of these disabilities at the time of the examination, he or she must provide the requested opinions based upon the diagnoses contained in the private DBQ submitted by the Veteran in June 2015. The examiner must provide the following opinions: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s foot disability, including plantar fasciitis, is related to an in-service injury, event, or disease, including wearing military boots and performing exercises with heavy weights on his back and neck? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s pes planus, which is noted on the November 1993 entrance examination, was aggravated (meaning a non-temporary increase in severity) by service and, if so, was any increase in severity clearly and unmistakably (undebatably) due to its natural progress? Each opinion offered must be supported by a complete rationale. The examiner must discuss the May 1994 and July 1998 treatment notes in the Veteran’s STRs, which not right foot trauma and bilateral foot pain for two weeks, and determine whether this foot pain is evidence of aggravation of the preexisting pes planus or a symptom of plantar fasciitis. whether it is at least as likely as not 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bronchitis. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease, including in-service treatment for upper respiratory diseases or disabilities. The examiner is advised that the Veteran received treatment for pharyngitis in March 1996, upper respiratory infection in July 1996, a notation of allergies and sinus problems in February 1997, and treatment for probable upper respiratory infection in February 1997. A complete rationale must support any opinion offered. 6. Schedule the Veteran for an examination of the current severity of his service-connected knee disabilities. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected knee disabilities alone and discuss the effect of the Veteran’s service-connected knee disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. Develop and adjudicate the raised claim as to whether the RO rating decision, dated in November 2012, which denied entitlement to a TDIU, contained CUE due to failure to consider depressive disorder, which was service-connected effective July 1, 2009 by a July 2015 rating decision, and failure to apply 38 C.F.R. § 3.303(b), the chronic disease presumption. The Veteran should be provided notice of the determination, and informed of his appellate rights. He should be afforded an appropriate opportunity to respond. 8. The RO should not return the claims file to the Board until either after the Veteran perfects his appeal as to his CUE claim, or the time period for doing so expires, whichever occurs first, unless otherwise indicated by the Veteran and/or his representative. 9. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an effective date earlier than July 11, 2015, for entitlement to a TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel