Citation Nr: 18157077 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-05 739A DATE: December 11, 2018 ORDER New and material evidence having been received, the previously denied claim for service connection for a left ankle disability, to include degenerative arthritis, is reopened. Entitlement to service connection for a left ankle disability, to include degenerative arthritis, is granted. New and material evidence having been received, the previously denied claim for service connection for a lumbar spine disability, to include mild lumbar degenerative disc disease, is reopened. Entitlement to service connection for a lumbar spine disability, to include mild lumbar degenerative disc disease, is granted. New and material evidence having been received, the previously denied claim for service connection for varicose veins of the left leg is reopened and the appeal is granted to this extent only. New and material evidence having been received, the previously denied claim for service connection for varicose veins of the right leg is reopened and the appeal is granted to this extent only. New and material evidence not having been received, the claim of entitlement to service connection for diabetes mellitus, type 2 (DM2) is denied. New and material evidence not having been received, the claim for service connection for peripheral neuropathy of the left foot is denied. New and material evidence not having been received, the claim of entitlement to service connection for peripheral neuropathy of the right foot is denied. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating in excess of 10 percent for hallux valgus of the left foot is denied. Entitlement to an initial disability rating in excess of 10 percent for hallux valgus of the right foot is denied. Entitlement to an initial disability rating in excess of 50 percent for bilateral pes planus effective June 7, 2011 is dismissed. REMANDED Entitlement to service connection for varicose veins of the left leg is remanded. Entitlement to service connection for varicose veins of the right leg is remanded. Entitlement to an effective date earlier than June 7, 2011 for the award of service connection for bilateral pes planus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In March 1995, the Regional Office (RO) denied service connection for degenerative arthritis of the left ankle, finding that this condition was not noted in service and was first diagnosed at a date too remote from service to be related thereto. 2. The evidence added to the record since the March 1995 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a left ankle disability. 3. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates the Veteran’s a left ankle disability, to include degenerative arthritis, is proximately due to his service-connected bilateral pes planus. 4. In January 2003, the RO denied service connection for mild lumbar degenerative disc disease, finding that this condition neither occurred in nor was caused by service. 5. The evidence added to the record since the January 2003 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability, to include mild lumbar degenerative disc disease. 6. Resolving reasonable doubt in the Veteran’s favor, the probative evidence of record demonstrates the Veteran’s lumbar spine disability, to include mild lumbar degenerative disc disease, is proximately due to his service-connected bilateral pes planus. 7. In January 2003, the RO denied service connection for varicose veins, finding that service connection on a secondary basis could not be established as diabetes was mellitus was not related to service, there was no evidence that varicose veins was aggravated by military service and this was not a chronic condition that was compensable by VA standards. 8. The evidence added to the record since the January 2003 RO decision was not previously submitted to agency decisionmakers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims for service connection for varicose veins of the left leg and right leg. 9. In January 2003, the RO denied service connection for DM2, finding that this condition neither occurred in or was caused by service and could not be granted on a presumptive basis because he did not have service in the Republic of Vietnam during the Vietnam War era. 10. The evidence added to the record since the January 2003 RO decision was previously submitted to agency decisionmakers, is cumulative or redundant and, by itself or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for DM2. 11. In January 2003, the RO denied service connection for peripheral neuropathy of the left foot and right foot, finding that this condition neither occurred in or was caused by service and service connection on a secondary basis could not be established as diabetes was mellitus was not related to service. 12. The evidence added to the record since the January 2003 RO decision was previously submitted to agency decisionmakers, is cumulative or redundant and, by itself or when considered with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim for service connection for peripheral neuropathy of the left foot and right foot. 13. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of a psychiatric disorder, to include PTSD. 14. The Veteran is in receipt of the maximum schedular evaluation for unilateral hallux valgus of the left foot. 15. The Veteran is in receipt of the maximum schedular evaluation for unilateral hallux valgus of the right foot. CONCLUSIONS OF LAW 1. Following the final March 1995 rating decision, new and material evidence has been presented to reopen the claim of service connection for a left ankle disability, to include degenerative arthritis. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for the establishment of service connection for a left ankle disability, to include degenerative arthritis, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Following the final January 2003 rating decision, new and material evidence has been presented to reopen the claim of service connection for a lumbar spine disability, to include mild lumbar degenerative disc disease. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 4. The criteria for the establishment of service connection for a lumbar spine disability, to include mild lumbar degenerative disc disease, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. Following the final January 2003 rating decision, new and material evidence has been presented to reopen the claims of service connection for varicose veins of the left leg and varicose veins of the right leg. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 6. Following the final January 2003 rating decision, new and material evidence has not been presented to reopen the claim of service connection for DM2 and the claim is not reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 7. Following the final January 2003 rating decision, new and material evidence has not been presented to reopen the claims of service connection for a peripheral neuropathy of the left foot and peripheral neuropathy of the right foot, and the claims are not reopened. 38 U.S.C. §§ 1110, 1131, 5108, 7105; 38 C.F.R. § 3.156(a). 8. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 9. The criteria for initial ratings in excess of 10 percent for right and left foot hallux valgus are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to April 1971. He testified in a hearing before a Decision Review Officer (DRO) at the Department of Veterans Affairs (VA) RO in June 2015. A transcript of that hearing has been associated with the claims file. A DRO hearing was also held in January 2018 with respect to 15 other issues (some of which are repetitive of the issues currently on appeal) for which, a statement of the case (SOC) has yet to be issued. New and Material Evidence The Veteran’s claim for connection for a left ankle disability was previously denied in a March 1995 rating decision. His claims for service connection for a lumbar spine disability, varicose veins of the left leg and right leg, DM2, and peripheral neuropathy of the left and right foot were previously denied in a January 2003 rating decision. The Veteran did not appeal those decisions. Accordingly, the March 1995 and January 2003 rating decisions are final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.104. Generally, a claim, which has been denied in a Board decision or an unappealed RO decision, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). VA must review all of the evidence received since the last final decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the limited purpose of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). Whether new and material evidence was received to reopen previously denied claims for entitlement to service connection for a left ankle disability, to include degenerative arthritis, a lumbar spine disability, to include mild lumbar degenerative disc disease, and varicose veins of the left leg and right leg The March 1995 rating decision denied service connection for degenerative arthritis of the left ankle, finding that this condition was not noted in service and was first diagnosed at a date too remote from service to be related to service. The Board finds that the newly received evidence after the March 1995 rating decision is material. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This evidence consists of the Veteran’s statements and testimony, Social Security Administration (SSA) records and private and VA medical records, including a June 2015 Disability Benefits Questionnaire (DBQ) of foot conditions completed by the Veteran’s VA physician. In the June 2015 DBQ, the VA physician commented that the Veteran’s ankle degenerative joint disease developed secondary to pes planus. Accordingly, this new evidence is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection a left ankle disability, to include degenerative joint disease. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. Therefore, this claim is reopened. In January 2003, the RO denied service connection for mild lumbar degenerative disc disease, finding that this condition neither occurred in nor was caused by service. The Board finds that the newly received evidence after the January 2003 rating decision is material. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This evidence consists of the Veteran’s statements and testimony, SSA records, medical treatise information regarding the effects of pes planus on the spine and private and VA medical records, including a January 2018 DBQ. In the January 2018 DBQ, a private physician opined that it was likely that the Veteran’s lumbar spine degenerative joint disease, canal stenosis, disc herniation and facet disease are related to his bilateral pes planus. Accordingly, this new evidence is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a lumbar spine disability, to include mild degenerative disc disease. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. Therefore, this claim is reopened. In January 2003, the RO denied service connection for varicose veins, finding that service connection on a secondary basis could not be established as diabetes was mellitus was not related to service, there was no evidence that varicose veins was aggravated by military service and this was not a chronic condition that was compensable by VA standards. The Board finds that the newly received evidence after the January 2003 rating decision is material. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). This evidence consists of the Veteran’s statements and testimony claiming varicose veins are secondary to pes planus, SSA records, private and VA treatment records and the May 2012 rating decision demonstrating service connection was awarded for bilateral pes planus. Accordingly, this new evidence is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for varicose veins of the left leg and of the right leg. See 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.303. Therefore, this claim is reopened. Whether new and material evidence was received to reopen previously denied claims for entitlement to service connection for DM2, and peripheral neuropathy of the left foot and right foot In January 2003, the RO denied service connection for DM2, finding that this condition neither occurred in or was caused by service and could not be granted on a presumptive basis because he did not have service in the Republic of Vietnam during the Vietnam War era. The Board finds that the newly received evidence, in conjunction with the previous evidence of record, does not relate to an unestablished fact regarding treatment or a diagnosis for DM2 in service, service in the republic of Vietnam during the Vietnam War era or a relationship between the Veteran’s currently diagnosed DM2 and his active service. Although new, the evidence does not relate to unestablished facts necessary to substantiate the claim in a way that would raise a reasonable possibility of substantiating the previously denied claim. In this regard, the Board notes that the newly received evidence, including the Veteran’s lay statements and testimony, SSA records or private and VA treatment records, reflects that the Veteran had a diagnosis of DM2 that was diagnosed many years after service, which had been previously established in the record. Therefore, as the evidence is considered cumulative or redundant of the evidence of record at the time of the final January 2003 RO decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for DM2, this claim is not reopened. See 38 C.F.R. § 3.156(a). In January 2003, the RO denied service connection for peripheral neuropathy of the left foot and right foot, finding that this condition neither occurred in nor was caused by service, and service connection on a secondary basis could not be established as DM2 was not related to service. The Board finds that the newly received evidence, in conjunction with the previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim. It does not provide any support for service incurrence of peripheral neuropathy of the left foot and right foot, or another relationship to service. Regarding service connection as secondary to DM2, because service connection has not been established for DM2, the new evidence does not raise a reasonable possibility of substantiating the claim. The newly received evidence, including the Veteran’s lay statements and testimony, SSA records, online medical treatise information or private and VA treatment records, reflects that the Veteran was diagnosed with peripheral neuropathy of the left foot and right foot many years after service, which found to be caused by his DM2. Such evidence was previously of record. Therefore, as the evidence is considered cumulative and redundant of the evidence of record at the time of the final January 2003 RO decision and does not raise a reasonable possibility of substantiating service connection for peripheral neuropathy of the left or right foot, the claim is not reopened. See 38 C.F.R. § 3.156(a). Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Left Ankle Disability The Veteran asserts that service connection is warranted for a left ankle disability, diagnosed as degenerative arthritis, on the basis that this disability is secondary to his bilateral pes planus. The Veteran was awarded service connection for bilateral pes planus in a May 2012 rating decision. The Veteran has a current diagnosis of degenerative arthritis of the left ankle. A November 2012 VA X-ray report revealed findings of mild degenerative joint disease. Although recent VA examinations did not address the left ankle disability, the Veteran provided a June 2015 DBQ of foot conditions, completed by his VA physician. The VA physician opined that the ankle degenerative joint disease developed secondary to pes planus. The probative evidence places the evidence in a state of relative equipoise as to whether the Veteran’s left ankle disability, diagnosed as degenerative arthritis, was proximately caused by his service-connected bilateral pes planus. Therefore, resolving any reasonable doubt in the Veteran’s favor, service connection for a left ankle disability, diagnosed as degenerative arthritis, is granted as secondary to the service-connected pes planus. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Lumbar Spine Disability The Veteran seeks service connection for a lumbar spine disability, diagnosed as mild lumbar degenerative disc disease, as secondary to his bilateral pes planus. The Veteran was awarded service connection for bilateral pes planus in a May 2012 rating decision. The Veteran has a current diagnosis of a back disability, including facet joint arthropathy (degenerative joint disease of the lumbar spine), degenerative disc disease, foraminal material recess/central stenosis, degenerative spondylolisthesis, intervertebral disc syndrome and radiculopathy, all diagnosed in a January 2018 DBQ. A September 2013 VA X-ray report revealed findings of mild to moderate degenerative joint disease of the lumbosacral spine. In the January 2018 DBQ of the spine, the examining physician opined that it was likely that the Veteran’s lumbar spine degenerative joint disease, canal stenosis, disc herniation and facet disease are related to his bilateral pes planus. Medical treatise information has also been received in the record discussing the effect of pes planus on the spine. Accordingly, the probative medical records taken together, at the very least places the evidence in a state of relative equipoise as to whether the Veteran’s lumbar spine disability, to include mild lumbar degenerative disc disease, is proximately due to his service-connected bilateral pes planus. Therefore, the Board resolves any reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for a lumbar spine disability, diagnosed as mild lumbar degenerative disc disease, is granted. Acquired Psychiatric Disorder, to Include PTSD The Veteran states that he developed PTSD due to his experiences in the military, including being accepted with pes planus and varicose veins but not being told about these disabilities at the time of his entrance into active service. See PTSD stressor information, undated with upload date of May 2009. He also claimed in the April 2012 VA examination, that he was yelled and screamed at by officers during his military training and it him angry and resentful toward authority. 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, or to a service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of PTSD or another mental disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In a June 2011 VA outpatient treatment report, the Veteran requested a referral for PTSD treatment and reported having unhappy experiences in service and generalized anxiety, but it was noted that he did not describe classic PTSD symptoms. In an April 2012 VA examination, the examiner noted a recent VA outpatient treatment report, in which he denied hallucinations, anxiety, loss of interest, hyperactivity, lack of concentration or performing a consistent task, depression, suicidal ideation or plans. At that time, the Veteran reported normal levels of worry about his family, health, living situation and denied significant anxiety and depression otherwise. The examiner concluded that the Veteran’s reported reactions and feelings to his perceived mistreatment in service did not constitute a mental disorder diagnosis. He also noted that, despite the Veteran’s complaints of trouble sleeping, depression or excessive worry and nervous problems at the time of discharge, he has not been diagnosed with any mental disorders at this time. The examiner found that the commander’s comments that the Veteran may not have been able to distinguish right from wrong were based on low aptitude test results, not on mental health symptoms or problems at the time. Finally, he concluded that, the Veteran was given a provisional diagnosis of atypical anxiety disorder due to a non-service related pesticide spill in 1983, however there was no evidence from current examination that the specific anxiety noted in 1983 continued to the present time or was related to service. In an October 2012 VA outpatient treatment report, the Veteran attended the orientation session of the trauma recovery PTSD program in which he reported symptoms of anxiety and depression, however, no diagnosis of a mental disorder was provided at that time. A subsequent February 2014 VA outpatient treatment report reflects findings of a negative depression screen. In an August 2015 VA outpatient treatment report, the Veteran denied symptoms of anxiety, depression, suicidal ideation or poor sleep. While the Veteran believes he has a current diagnosis of an acquired psychiatric disorder, to include PTSD, he is not competent to provide a diagnosis in this case. See 38 C.F.R. § 3.304(f); Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify). Accordingly, the Veteran’s statement that he has PTSD, by itself, is not probative, and is outweighed by the medical evidence discussed above. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran’s claim for service connection for an acquired psychiatric disorder, to include PTSD, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Therefore, the Veteran’s claim for service connection an acquired psychiatric disorder, to include PTSD, is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hallux Valgus of the Left Foot and Right Foot The Veteran’s hallux valgus of the left foot and right foot has each been assigned a 10 percent disability rating under DC 5280. Under DC 5280, a maximum 10 percent rating is assigned for severe, unilateral hallux valgus if equivalent to amputation of great toe or for unilateral hallux valgus operated with resection of metatarsal head. 38 C.F.R. § 4.71a, DC 5280. A 10 percent rating is the maximum schedular rating for unilateral hallux valgus. Id. Thus, ratings in excess of 10 percent are not available under DC 5280. Accordingly, higher ratings for either foot under DC 5280 must be denied as a matter of law. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). The Board finds that no other diagnostic code is applicable to the Veteran’s bilateral hallux valgus. Pes Planus of the Left and Right Foot from June 7, 2011 The Veteran perfected an appeal regarding the initial rating assigned his service-connected bilateral pes planus. A November 2015 rating decision granted a 50 percent rating for pes planus effective June 7, 2011, which is the current effective of service connection. As this is the maximum available rating for pes planus, the RO correctly removed the issue from appellate status. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2017) (assigning a maximum rating of 50 percent for bilateral pes planus); cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a grant of a higher rating during the course of an appeal, but less than the maximum allowable benefits, does not abrogate the appeal). The Veteran has not alleged any specific error of fact or law in the assigment of a maximum 50 percent rating from the effective date of service connection, and no such error is otherwise reasonably raised by the record. Accordingly, the Board will dismiss the appeal. See 38 U.S.C. § 7105 (2012) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). (The issue of whether an earlier effective date of service connection is warranted, and the evaluation of the Veteran’s pes planus for any period prior to June 7, 2011 for which service connection may subsequently be established, is addressed below in the REMAND section.) REASONS FOR REMAND Service Connection for Varicose Veins of the Bilateral Legs The Veteran previously filed appealed regarding the claims for service connection for bilateral pes planus and varicose veins of the left leg and right leg, which were denied in a July 2005 rating decision. Specifically, he filed a timely notice of disagreement (NOD) in August 2005 and an SOC was issued in December 2007. In a December 2008 letter, the Veteran reported that he had received the December 2007 SOC in November 2008, and provided a postmarked envelope from Department of Veterans Affairs (VA) RO dated November 12, 2008. In a December 2008 letter, the RO found that its records showed the SOC was mailed in December 2007 and there was no evidence that mail was sent to the Veteran on November 12, 2008 and therefore there was no appeal pending at that time. The Board finds it credible that the Veteran did not receive the SOC until November 2008, as the December 2007 cover letter to the original SOC is addressed to a former address for the Veteran. The record shows that the address on file for the Veteran, both in VA’s internal recordkeeping and in correspondence from the Veteran, was different from the one on the December 2007 cover letter to the SOC, which was a former address previously on file from several years back. Thus, apart from the envelope provided by the Veteran showing a postmark date of November 2008, there is every indication that the original December 2007 SOC was mailed to the wrong address. VA had sufficient knowledge of the Veteran’s then current address at the time. Accordingly, the Board finds it credible that the Veteran did not receive the December 2007 SOC, and did not receive a copy of the SOC until November 2008. The Board further finds that the Veteran’s December 2008 statement regarding the intent to continue his appeal can be construed as a timely substantive appeal. Thus, he perfected his appeal of the July 2005 rating decision. Accordingly, the current appeal regarding service connection for varicose veins of the bilateral legs, and the initial rating of service-connected bilateral pes planus, stems from the Veteran’s June 2004 claims. A VA medical opinion regarding direct service connection was provided in April 2012. The Board finds that a VA medical opinion is warranted to address whether the Veteran’s varicose veins were aggravated by his service-connected pes planus. (As his varicose veins were noted at entrance into active service connection, the issue of causation is moot.) As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Effective Date of Award of Service Connection Pes Planus As discussed above, the Board finds that the prior appeal for service connection for bilateral pes planus stemmed from the June 2004 claims. The Veteran timely initiated an appeal of the effective date of service connection with a July 2013 Notice of Disagreement. He also expressed disagreement with the effective date of service connection in an August 2012 letter and on an August 2012 VA Form 9 (which he submitted prior to issuance of an SOC, and thus does not serve to perfect the appeal). The agency of original jurisdiction (AOJ) has yet to address this issue or furnish a Statement of the Case (SOC). Accordingly, the Board has taken jurisdiction of this issue to remand for these actions. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). If the Veteran continues to disagree with the disposition of this issue, he must timely file a substantive appeal following issuance of the SOC in order to perfect an appeal to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2017); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). TDIU The Veteran perfected the appeal for TDIU, which arose from a September 2012 claim, and this issue also has been raised as part and parcel of the increased rating claims the pendency of this appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board’s grant of service connection for a left ankle disability and low back disability, as well as its remand of the claim of service connection for varicose veins, may affect the outcome of the issue of entitlement to TDIU. Accordingly, the Board will defer a decision pending further consideration by the AOJ. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records for the Veteran dated since July 2016. 2. Obtain a VA medical opinion on the issue of secondary service connection based on aggravation for varicose veins of the Veteran’s bilateral lower extremities, as specified below. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran’s varicose veins of the right and/or left lower extremity were aggravated by his service-connected bilateral pes planus. “Aggravation” means that there was an increase in severity beyond a medically established baseline. 3. Adjudicate the issue of whether an effective date earlier than June 7, 2011 is warranted for the award of service connection for bilateral pes planus. In making this determination, please note that the Board finds that the Veteran timely perfected an appeal of the July 2005 rating decision, which denied reopening the claim (as discussed in the body of this remand). Then, issue an SOC. Once the SOC is issued, the Veteran must file a timely substantive appeal (i.e. VA Form 9 or an equivalent statement) in order to perfect the appeal to the Board. 3. Following implementation of the Board’s grants of service connection for a left ankle disability and lumbar spine disability, and after any additional development that may be indicated, readjudicate the issue of entitlement to TDIU. If the benefits sought are not granted, the Veteran must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saira Spicknall, Counsel