Citation Nr: 1808180 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-16 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right leg disability. 2. Entitlement to service connection for a left leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In May 2016, the Veteran testified via videoconference before a Veterans Law Judge seated in Washington, D.C. A transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Service connection - Bilateral leg disabilities The Veteran seeks service connection for bilateral disabilities of the lower legs. She asserts that as a result on marching and running in service, she sustained chronic disabilities of the lower extremities. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2014); 38 C.F.R. §§ 3.303, 3.304 (2017). During the pendency of this appeal, the Veteran was awarded service connection for plantar fasciitis with heel spur syndrome and healed fractures of the metatarsals of the bilateral feet. In support of her claim, she submitted recent private treatment records, including a January 2017 physical therapy evaluation. In this record, her physical therapist stated the Veteran's bilateral foot disabilities "could cause compensatory mechanisms that could lead to early deterioration of both knee joints." Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In the present case, the use of the word "could" in the January 2017 private opinion statement is speculative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). Nevertheless, the Board finds this evidence sufficient to trigger VA's obligation to afford the claimant a VA medical examination or opinion. 38 U.S.C.A. § 5103A(d); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran's claim was previously remanded in July 2016 for a medical examination and opinion, which was obtained by the RO in September 2016, the question of secondary service connection was not addressed by the examiner at that time, as it had not been raised by the appellant or the record. Nevertheless, VA is bound to consider all pertinent theories of service connection, whether or not a theory is raised by a veteran. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement). As such, the question of secondary service connection must be addressed by the Board. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the September 2016 examination, if available. If that examiner is unavailable, a similar expert in orthopedic disorders may be utilized. All pertinent symptomatology and findings should be reported in detail. The Veteran need not be scheduled for an in-person physical examination unless the examiner determines that such an examination is necessary to comply with this remand. After review of the entire record, the examiner is requested to provide an opinion, with complete rationale, as to the following: Is it "at least as likely as not" (50 percent or greater probability) that any current disability of either lower extremity, to include the knees, is due to or the result of, or aggravated by the service-connected disabilities of the bilateral feet, to include any altering of the Veteran's gait? (In this context, "aggravation" is defined as a permanent increase in disability beyond the natural progress of the disorder.) The Veteran has been granted service connection for plantar fasciitis with heel spur syndrome and healed fractures of the metatarsals of the right and left feet. The medical rationale for any opinions expressed must be provided. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).