Citation Nr: 18118366 Decision Date: 07/13/18 Archive Date: 07/13/18 DOCKET NO. 15-12 834 DATE: July 13, 2018 ORDER New and material evidence has been submitted and the claim to reopen a claim of entitlement to service connection for left foot metatarsalgia is granted to this extent only. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for marijuana use, also claimed as substance abuse is denied. Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture is denied. Entitlement to a temporary total rating for service-connected disabilities requiring hospital treatment or observation in excess of 21 days is denied. REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a bilateral foot condition, to include pes planus, metatarsalgia with arthritis, heel spurs, and a condition manifested by persistent callousing is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee is remanded. FINDINGS OF FACT 1. Service connection for left foot metatarsalgia was denied in a January 2004 rating decision, of which the Veteran was notified in February 2004, on the basis that the disability was not incurred during the Veteran’s active service. The Veteran did not submit new and material evidence, nor otherwise file an appeal during the allowed one-year appellate period thereafter. 2. Evidence submitted since the January 2004 denial is new, and when credibility is presumed solely for the purpose of reopening the claim, raises a reasonable possibility of substantiating the claim of service connection. 3. The Veteran’s left ear hearing impairment is not considered disabling for VA purposes. 4. The Veteran’s right ear hearing impairment, although disabling, is not shown by a preponderance of the evidence to be due to a disease or injury in service, including occupational noise exposure. 5. Marijuana use, also claimed as substance abuse, is the result of the Veteran’s willful misconduct. 6. The Veteran’s residuals of a left ankle fracture is primarily manifested by painful motion of the joint, with no less than 30 degrees of plantar flexion or 10 degrees of plantar dorsiflexion, representing no more than moderate limitation of motion. 7. The Veteran’s claimed periods of hospitalization in 2011 and 2012 were residential treatment services, also known as domiciliary care, provided for rehabilitation and treatment of the Veteran’s conditions of substance abuse and homelessness, not for a service-connected disability requiring hospital treatment or observation. CONCLUSIONS OF LAW 1. The January 2004 rating decision that denied the Veteran’s claim of entitlement to service connection for left foot metatarsalgia is final. 38 U.S.C. § 7105 (2000); 38 C.F.R. §§ 20.302, 20.1103 (2003). 2. The criteria for reopening the claim of entitlement to service connection left foot metatarsalgia have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.385 (2017). 4. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 5. Service connection for marijuana use is barred as a matter of law. 38 U.S.C. §§ 105, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.1, 3.301, 3.303(a) (2017). 6. The criteria for a disability rating in excess of 10 percent for residuals of a left ankle fracture are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5271 (2017). 7. The criteria for a temporary total disability rating (100 percent) for service-connected disabilities requiring hospital treatment or observation in excess of 21 days are not met. 38 U.S.C. §§ 1155, 1710, 5107 (2012); 38 C.F.R. § 4.29 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1973 to December 1976, and in the United States Navy from July 1978 to July 1983. The period of naval service from February 1982 to July 1983 has been determined to constitute dishonorable service, and is a bar to the payment of VA benefits based upon that final period of service. To clarify, the Veteran’s naval service from 1978 to 1983 was comprised of two enlistment periods. The first, July 1978 to February 1982, resulted in an honorable discharge which is binding on the Department of Veterans Affairs as to the character of discharge. 38 C.F.R. § 3.12(a) (2017). The Veteran’s second naval enlistment, February 1982 to July 1983, resulted in a discharge under “other than honorable conditions” by reason of misconduct due to drug abuse (possession) as noted on his DD Form 214. In December 2003, VA issued an administrative decision that the period of service from 1978 to 1983 “is not shown to have been served under conditions other than dishonorable for VA purposes.” The Veteran was informed of this decision in a February 3, 2004 letter indicating that the character of discharge from the Veteran’s naval service from 1978 to 1983 was a bar to the payment of benefits based on this period of service. The Veteran was informed of his appellate rights and the process by which he could request a reconsideration of the character of his discharge through the appropriate board for naval service. The Veteran did not appeal this decision and the character of his discharge remains unchanged. However, as the Board noted above, an honorable discharge issued by the relevant service department, the Navy in this case, is binding on VA. Thus, the Veteran’s first naval enlistment from July 1978 to February 1982 is shown to have resulted in an honorable discharge and is not a bar to VA benefits for that period of service. Only the final enlistment period from February 1982 to July 1983 is considered dishonorable and a bar to VA benefits based on that enlistment period only. The Board also acknowledges that the Veteran has not received appropriate notice under the Veterans Claims Assistance Act of 2000 (VCAA) regarding the type of information and evidence needed to substantiate a petition to reopen a previously denied claim. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.156 (2017); Kent v. Nicholson, 20 Vet. App. 1 (2006). This oversight has occurred because the Regional Office has not treated the Veteran’s current claim as though there were a previously denied claim requiring new and material evidence to reopen. The Board is required to take this procedural step. Nonetheless, given the favorable outcome herein, new and material evidence being found sufficient to reopen the claim, no further explanation of how VA has fulfilled the duties to notify and assist is currently necessary. REOPENED CLAIM New and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for left foot metatarsalgia. Where a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 7105; 38 C.F.R. § 3.156 (a). New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). To establish whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Veteran’s claim of entitlement to service connection for left foot metatarsalgia was previously denied in January 2004. The Veteran did not appeal that decision and it became final. This determination was based upon a lack of evidence that metatarsalgia, diagnosed upon VA examination, was incurred during service or is otherwise medically related to the Veteran’s active service. The Veteran has subsequently provided written and oral statements that, in addition to the wearing of military boots, his service-connected left ankle fracture is at least partially responsible for his current problems with his feet. This evidence is both new and material, and when presumed credible for the limited purpose of the petition to reopen the claim, raises a reasonable possibility of substantiating the underlying claim of service connection. As new and material evidence has been received, the claim of entitlement to service connection for a bilateral foot condition, including metatarsalgia is reopened, and to this extent only, the claim is granted. 38 U.S.C. §5108; 38 C.F.R. § 3.156. SERVICE CONNECTION 1. Entitlement to service connection for bilateral hearing loss is denied The determination of whether a Veteran has a disability due to impaired hearing is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws administered by VA, impaired hearing is a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In this case, the Veteran’s hearing acuity in the left ear is not shown to be disabling for VA purposes. Upon VA examination in January 2012, the left ear did not show an auditory threshold of 26 decibels or greater at any tested frequency, and discrimination scores using the Maryland CNC word list was 100 percent bilaterally. The left ear was diagnosed as having normal hearing. Thus, there is no left ear hearing loss disability for which service connection may be granted. 38 C.F.R. § 3.385. Regarding the Veteran’s right ear hearing loss, upon examination in January 2012, this ear did meet the necessary minimum threshold for a disabling condition under 38 C.F.R. § 3.385. Examination showed a sensorineural hearing loss in the right ear, with a 40-decibel threshold at 3000 Hz. As such, there is a right ear hearing loss disability. VA has also conceded occupational noise exposure associated with the Veteran’s active service. The Veteran’s Army service was in the field of microwave communications, and his Navy service was an operations specialist. The January 2012 examining audiologist found the Veteran would have been exposed to frequency squelch and static during communication systems set-up and checks, and the Veteran reported exposure to weaponry as his duty station aboard ship was near anti-submarine rocket (ASROC) gun mounts. Notably, in hearing testimony provided in May 2016, the Veteran asserted that he did not tell the audiology examiner about his service in the Navy until after the completion of the examination, and that the examiner was under the false assumption that the Veteran had only served in the Army. The Veteran stated that upon clarifying this with the examiner, the examiner stated that the Veteran should have told the examiner about this as it might have resulted in a different determination. However, this potential inadequacy is expressly contradicted by the examination report itself. The January 2012 audiology examination clearly details service in both the Army and the Navy, and includes the Veteran’s allegations of noise exposure during his naval service. Thus, whether the examiner initially noted this information, or amended his report after the Veteran’s description of naval service, the Veteran’s service history is shown to have been adequately considered and addressed by this examiner. However, the examiner ultimately found it to be less likely as not (less than a 50 percent probability) that the Veteran’s right ear hearing loss was caused by or a result of his active service. Specifically, the examiner stated that the Veteran entered and was discharged from active service with clinically normal hearing in both ears, and that there was no significant shift in hearing thresholds during active service. The examiner stated that current scientific evidence asserts that permanent hearing loss related to acoustic exposure occurs immediately at the time of insult and has not been found to present with a delayed or progressive onset. Service treatment records reflect that this Veteran explicitly denied having experienced any hearing loss at the time of his discharge, and the medical evidence shows stable, clinically normal hearing sensitivity at the time of discharge. As a result, the examiner found it more likely that the Veteran’s hearing loss began after his military service and is not related to that service. The Board finds this to be an adequate rationale for the medical nexus opinion provided, and there is no positive medical opinion to the contrary. The Board affords significant probative weight to this opinion as it is provided by an examiner who has personally examined the Veteran, thoroughly documented the Veteran’s claims of in-service noise exposure, and adequately supported his resulting opinion with a medical rationale. The preponderance of the evidence is against finding that the Veteran’s right ear hearing loss disability is etiologically related to his military service. Finally, the Board notes that service connection on a presumptive basis is available for an organic disease of the nervous system, such as a sensorineural hearing loss, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2002); 38 C.F.R. §§ 3.307, 3.309 (2017). In this case, however, the Veteran’s last discharge from service (that may be considered by VA) is that occurring in February 1982, as his subsequent Navy enlistment has been determined to be dishonorable and benefits may not be based upon that period of service. Thus, for presumptive service connection, a compensable degree of right ear hearing loss would need to have been shown during or before February 1983. Instead, audiometry results from May 1983, during the Veteran’s dishonorable period of service, reflect hearing that was not considered disabling for VA purposes. Service connection on a presumptive basis is not warranted. 38 C.F.R. § 3.307. In all, service connection is not warranted for hearing loss in either ear under either a direct or presumptive theory of entitlement. Service connection for bilateral hearing loss must be denied. 2. Entitlement to service connection for marijuana use, also claimed as substance abuse is denied. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, not as the result of a Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301 (2017). The isolated and infrequent use of drugs by itself is not considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction is defined by regulation as willful misconduct. Drug abuse is also defined for VA purposes as the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or nonprescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(c)(3), (d). Where drugs are used for therapeutic purposes or where use of drugs or addiction to drugs results from a service-connected disability, it is not to be considered of a misconduct origin. 38 C.F.R. § 3.301(c)(3). In the present case, the Veteran argues that although not legal at the time, the Veteran’s use of marijuana during his naval service was for a therapeutic purpose, specifically to treat seasickness. The Board does not find this history to be credible. Instead, the Veteran’s own contemporaneous statements contradict this history. In February 1982, after documented shipboard service, the Veteran completed a pre-enlistment Report of Medical History form. At that time, the Veteran explicitly denied ever having car, train, air or sea sickness, despite reporting other mild symptoms such as experiencing “rare indigestion” in another segment of the report.Service treatment records, February 1982. If the Veteran had experienced the type of severe and ongoing seasickness that he described before the undersigned in his May 2016 testimony, the Board finds it would have been likely to have been reported. Yet, the service treatment records are silent as to any report of seasickness, although other minor shipboard ailments do appear in the record. There is no record that the Veteran ever sought medical treatment for seasickness. The Veteran also explicitly denied ever experiencing seasickness at the time. Thus, the Board does not find a therapeutic use of marijuana during service, with the intent to treat seasickness, to be credible. The Board also notes that VA regulations define drug abuse as including the intentional use of a drug, whether prescription or nonprescription, for a purpose other than the medically intended use, or the use of a substance to enjoy its intoxicating effects. 38 C.F.R. § 3.301(d). By this definition, the Veteran’s use of marijuana during service, even if it were used to treat seasickness, would constitute drug abuse, for which service connection is prohibited by regulation. 38 C.F.R. § 3.301(a). The Veteran’s service personnel records also document four instances of nonjudicial punishment for possession and use of marijuana between September 1979 and June 1983. This represents a pattern of conduct, and a progressive and frequent use of drugs. The Board finds this drug usage to be willful misconduct, for which service connection is prohibited by law. 38 C.F.R. §§ 3.1, 3.301.   INCREASED RATINGS 1. Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes (DCs) identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). In this case, the Veteran seeks a higher rating for his service-connected left ankle disability, currently rated as 10 percent disabling under DC 5271. This diagnostic code allows a 10 percent rating for moderate limitation of motion of the ankle, and a 20 percent rating for marked limitation of motion. The terms “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Normal range of ankle motion is from 20 degrees of upward dorsiflexion (extension) to 45 degrees of downward plantar flexion. 38 C.F.R. § 4.71, Plate II (2017). Upon examination in November 2011, the Veteran described experiencing ankle pain at a level of 4.5 out of 10 on an average day, with flares that could go to a 7 out of 10 on a pain scale. The Veteran described these flares saying, “it basically immobilizes me.” The Veteran’s left ankle exhibited 10 degrees of extension and 30 degrees of flexion, with no objective evidence of painful motion. Range of motion did not change after repetitive-use testing with three repetitions. There was no localized tenderness or pain on palpation, and no muscle weakness, or joint instability or laxity. The examiner did note that the Veteran’s examination was inconsistent in that the Veteran would not dorsiflex or extend his left foot upward beyond 10 degrees despite repeated re-examination requests, but his range of motion improved with distraction, and the Veteran had no difficulty walking on a flat surface without shoes. The Board finds these inconsistencies reduce the Veteran’s credibility and the probative weight assigned to the Veteran’s statements regarding the nature of any limitation of motion and severity of his ankle pain. As such, the objective medical evidence is found to be a more probative reflection of the severity of ankle disability in this instance. Upon examination in April 2014, the Veteran’s left ankle exhibited 10 degrees of extension and 40 degrees of flexion, with evidence of painful motion on plantar flexion only. There was no change on repetitive use testing, and the Veteran described experiencing no flare-ups. The Veteran was found to have localized tenderness or pain on palpation of the left ankle, but muscle strength and joint stability testing remained normal. An April 2014 x-ray confirms mild degenerative osteoarthritic changes in the tibiotalar joint. In all, the Board finds the evidence to reflect no more than moderate limitation of motion of the ankle at any time during the present appeal. Although some painful limitation of motion was shown, the Veteran maintained at least 10 degrees of extension (where 20 degrees is normal) and 30 degrees of dorsiflexion (where 45 degrees is normal). The Board does not find the Veteran’s overall left ankle condition to represent a “marked” limitation of motion of the ankle. A higher 20 percent rating under DC 5271 is not warranted. The Board finds no other appropriate diagnostic code under which a higher rating can be granted. There is no ankylosis, malunion of the os calcis or astragalus, or astragalectomy. A rating in excess of 10 percent is not warranted for the Veteran’s left ankle disability. 2. Entitlement to a temporary total rating for service-connected disabilities requiring hospital treatment or observation in excess of 21 days is denied. The Veteran contends that he is entitled to multiple periods of a temporary total ratings due to hospitalization over 21 days for periods of residential substance abuse rehabilitation and domiciliary care as a homeless Veteran in 2011 and 2012. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment or hospital observation in a VA hospital or other approved hospital for a period in excess of 21 days. 38 C.F.R. § 4.29. At present, the Veteran’s service-connected disabilities are chondromalacia patella of the left knee and residuals of left ankle fracture. The Veteran concedes that the purpose of the hospitalizations in question were for substance abuse rehabilitation and domiciliary care as a homeless Veteran, however he asserts that during this time, he also received medical care for other conditions, including his service-connected disabilities.Hearing testimony, May 2016. The Board does not dispute the Veteran’s testimony. However, VA regulations are clear that where hospital admission was for disability that is not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted, it must be continued for a period in excess of 21 days for the temporary total increase to be granted. 38 C.F.R. § 4.29(b). Here, there is no evidence, nor does the Veteran contend that the purpose of his in-patient or domiciliary care was to treat or observe his service-connected left knee or left ankle disabilities. Furthermore, even if such care were instituted during his stay, it is not shown to persist for 21 days or more to treat or observe the Veteran’s left ankle or left knee disability. The purpose of the Veteran’s care is instead shown to be for substance abuse rehabilitation, and to address the Veteran’s homelessness. See, e.g., Certificate of Completion for “Residential Substance Abuse Treatment Program,” October 2011; VA Form 10-7132, January 2012 (certifying 21 days of consecutive hospitalization for treatment or observation where the listed diagnosis as “Veteran Dx – Homeless”). Given the evidence of record, there is no evidence that hospital treatment or observation was required for a service-connected disability; therefore, a temporary total rating is not warranted under 38 C.F.R. § 4.29. REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar spine disability, to include as secondary to the Veteran’s service-connected left knee and left ankle disabilities, is remanded. The Veteran asserts that his current spine condition is secondary to his service-connected ankle disability, as well as to his complaints of foot problems during service. Because a decision on the remanded issue of service connection for a bilateral foot disabilty could significantly impact a decision on the issues of service connection for a thoracolumbar spine disability, the issues are inextricably intertwined. A remand of the claim for service connection for a spine disabiltiy is required on this basis. Additionally, the Veteran asserts that his back pain began during service, at which time a cervical spine injury is noted to have occurred during a basketball game in October 1974. The Board cannot make a fully-informed decision on the issue of service connection for a thoracolumbar spine disability because no VA examiner has adequately opined whether the Veteran’s current spine condition is related to his service-connected left knee or ankle disability, to the claimed foot disabilities, or directly related to the cervical spine injury during service. A VA examination is required to address these matters. 2. Entitlement to service connection for a bilateral foot condition, to include pes planus, metatarsalgia with arthritis, heel spurs, and a condition manifested by persistent callousing, to include as secondary to the Veteran’s service-connected left ankle disability, is remanded. The Board has recharacterized the claim as it now appears above in compliance with the ruling in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) which emphasized that although a Veteran may only seek service connection for a particular named disability, it is not appropriate to limit a claim to that named diagnosis alone, but must rather be considered a claim for any disability that may be “reasonably encompassed” by the claim. In other words, a Veteran does not file a claim to receive benefits for a particular diagnostic term that is named on a claims form, but instead makes a general claim for compensation for the type of affliction posed by the Veteran’s symptoms. Generally speaking, the Veteran’s October 2011 claim sought service connection for “problems with my feet.” The Veteran’s medical records and lay testimony reflect the conditions listed above, and for this reason the Board will broadly interpret his claim as seeking service connection for any such foot condition of either foot. To this end, the Board cannot make a fully-informed decision on the issue of service connection for a bilateral foot condition because no VA examiner has sufficiently opined whether the Veteran’s current foot condition is related to the documented foot complaints during service, whether the pes planus noted at the Veteran’s entry into service was aggravated during service, or whether any current foot condition was caused or aggravated by a service-connected disability. A VA examination is required. 3. Entitlement to a rating in excess of 10 percent for chondromalacia patella of the left knee is remanded. Regarding the claim of entitlement to an increased rating for the Veteran’s left knee chondromlacia, the Veteran submitted a timely July 2014 notice of disagreement with a June 2014 rating decision, but a statement of the case has not yet been issued. A remand is required for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case. 38 C.F.R. § 20.200 (2017); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any current foot disability, specifically to include pes planus, metatarsalgia with arthritis, heel spurs, and a condition manifested by persistent callousing. Please note that the Veteran’s second naval enlistment period from February 1982 to July 1983 may NOT be considered as a basis for VA benefits. The examiner is asked to opine on each of the following questions, with a supporting medical rationale for the resulting opinions: (a.) Is it at least as likely as not that any currently diagnosed foot disability is related to an in-service injury, event, or disease, including callosity and plantar warts noted during service in 1979, the complaints described on page 2 of the February 1982 Report of Medical History form regarding foot/toe bone spacing, or the wearing of military boots described as “deforming” his feet in May 2016 hearing testimony? (b.) Is it at least as likely as not that any currently diagnosed arthritis of the feet (1) began during active service by February 1982, (2) manifested during or before February 1983, or (3) was noted during service with continuity of the same symptomatology since service? (c.) Is it at least as likely as not that any currently diagnosed foot disability is (1) proximately due to the Veteran’s service-connected left knee or left ankle disability, or (2) was aggravated (worsened) beyond its natural progression by the service-connected left knee or ankle disability. (d.) The Veteran’s pes planus is noted on his July 1973 initial enlistment examination, and is found to have preexisted his active service. Is there clear and unmistakable evidence that the Veteran’s pes planus WAS NOT aggravated during service (i.e., did not undergo a non-temporary increase in severity during service beyond the natural progress of the disease)? 2. Schedule the Veteran for an examination to determine the nature and etiology of any thoracolumbar spine disability. The examiner must opine as to the following: (a.) Is it at least as likely as not that any currently diagnosed thoracolumbar spine disability is related to an in-service injury, event, or disease, including the October 1974 basketball injury? (b.) Is it at least as likely as not that any currently diagnosed thoracolumbar spine disability (1) is proximately due to the Veteran’s service-connected knee or ankle disability, or (2) was aggravated (worsened) beyond its natural progression by his service-connected knee or ankle disability. (Continued on the next page)   (c.) If a current foot disability is diagnosed, (regardless of the examiner’s opinion on etiology of that foot disability) then the spine examiner is also asked to opine whether a current thoracolumbar spine disability is at least as likely as not (1) proximately due to the diagnosed foot disability, or (2) aggravated beyond its natural progression by the diagnosed foot disability. This opinion is requested, although a current foot disability may or may not ultimately be found to be related to active service, as the two claims are inextricably intertwined and the Board may require the requested opinion for appropriate adjudication if returned for appellate consideration. 3. Send the Veteran and his representative a statement of the case that addresses the issue of an increased rating for chondromalacia patella of the left knee. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel