Citation Nr: 20043085 Decision Date: 06/25/20 Archive Date: 06/25/20 DOCKET NO. 17-32 187 DATE: June 25, 2020 REMANDED Service connection for a right hip disorder is remanded. Service connection for a left hip disorder is remanded. Service connection for a right knee disorder is remanded. Service connection for a left knee disorder is remanded. Service connection for bilateral pes planus is remanded. An initial compensable rating prior to January 23, 2018 and a rating greater than 10 percent on and thereafter for right shin splints of the right lower extremity with knee impairment is remanded. An initial rating greater than 10 percent for a right 4th metatarsal stress fracture of the right foot is remanded. Service connection for a low back disorder is remanded. Service connection for right lower extremity radiculopathy is remanded. Service connection for left lower extremity radiculopathy is remanded. REASONS FOR REMAND With respect to the issue of entitlement to an initial rating greater than 10 percent for a right 4th metatarsal stress fracture, a February 2017 rating decision granted service connection for the disability and assigned a 0 percent (noncompensable) rating effective August 25, 2016. The Veteran filed a timely notice of disagreement (NOD) to the initial rating. A June 2017 rating decision increased the rating for the disability to 10 percent effective from the date of service connection. While the issue is not certified for appeal, as will be discussed below, the Board will take jurisdiction over this issue. With respect to the issues of entitlement to service connection for a right hip disorder, left hip disorder, right knee disorder, left knee disorder and bilateral pes planus, a May 2018 rating decision denied those issues, and the Veteran filed a timely NOD. While the issues are not certified for appeal, as will be discussed below, the Board will also take jurisdiction over these issues. Service connection for a right hip disorder Service connection for a left hip disorder Service connection for a right knee disorder Service connection for a left knee disorder Service connection for bilateral pes planus In a May 2018 rating decision, the agency of original jurisdiction (AOJ) denied service connection for a right hip disorder, left hip disorder, right knee disorder, left knee disorder and bilateral pes planus. In January 2019, the Veteran filed a timely NOD and requested a hearing before a decision review officer (DRO). He asserted that these disorders are secondary to an altered gait due to his service-connected right shin splints and right 4th metatarsal stress fracture, the same assertion he made in support of the claim on appeal for service connection for a low back disorder. His assertion regarding the low back disorder would extend to an altered gait due to hip and knee disorders as well as pes planus. As such, a grant of service connection for any of these disorders could affect the claim for service connection for the low back disorder. Thus, the Board finds that the claims are inextricably intertwined, and the Board will take jurisdiction over these issues and remand for issuance of a statement of the case (SOC). In March 2019 letters, the AOJ advised the Veteran that his NOD was premature and invalid, as he was never notified of the May 2018 rating decision, and that the requested hearing before a DRO was being cancelled. However, a December 2018 notification letter for a December 2018 rating decision on another matter included a copy of the May 2018 rating decision. Thus, although official notice of the May 2018 rating decision was not issued until March 2019, notice of the rating decision was, in fact, issued in December 2018 and, as such, the Veteran’s NOD is valid. Thus, an SOC is still warranted. Moreover, in light of his earlier request for a DRO hearing, he should be scheduled for one prior to issuance of the SOC. An initial compensable rating prior to January 23, 2018 and a rating greater than 10 percent on and thereafter for right shin splints of the right lower extremity with knee impairment A February 2017 rating decision granted service connection for right shin splints and assigned a noncompensable rating effective August 25, 2016. In April 2017, the Veteran filed a timely NOD to the initial rating. Thus, the Board is required to remand the issue of entitlement to a higher initial rating for right shin splints for issuance of an SOC. Although a May 2018 rating decision increased the rating for the disability to 10 percent effective from January 23, 2018, that increase did not result in the maximum rating available for the entire rating period, and thus the issue remains on appeal and an SOC is still warranted. An initial rating greater than 10 percent for a right 4th metatarsal stress fracture of the right foot The claim for a higher initial rating for a right 4th metatarsal stress fracture was last readjudicated in a June 2017 supplemental statement of the case (SSOC). Since that time, March 2018 and November 2018 VA examination reports on foot conditions pertinent to the claim have been added to the claims file. Due process requires that the AOJ consider this evidence in the first instance. Service connection for a low back disorder As noted above, the claims for service connection for a right hip disorder, left hip disorder, right knee disorder, left knee disorder and bilateral pes planus are being remanded for issuance of an SOC. As the remand of these claims could affect the low back disorder claim, the claims are inextricably intertwined and a decision on the low back disorder claim at this time would be premature. Service connection for right lower extremity radiculopathy Service connection for left lower extremity radiculopathy The claims for service connection for right and left lower extremity radiculopathy are secondary to the claim for service connection for a low back disorder. As the remand of the low back disorder claim could affect these claims, the claims are inextricably intertwined and a decision on the radiculopathy claims at this time would be premature. These matters are REMANDED for the following action: 1. Schedule the Veteran for a hearing before a DRO on the issues of entitlement to service connection for a right hip disorder, left hip disorder, right knee disorder, left knee disorder and bilateral pes planus. Notify the Veteran and his representative, if any, in writing of the date, time, and location of the hearing. 2. Issue an SOC on the issues of entitlement to service connection for a right hip disorder, left hip disorder, right knee disorder, left knee disorder and bilateral pes planus. If the Veteran thereafter files a timely substantive appeal, certify the issue(s) for appellate review. 3. Issue an SOC on the issue of entitlement to an initial compensable rating prior to January 23, 2018 and a rating greater than 10 percent thereafter for right shin splints. If the Veteran thereafter files a timely substantive appeal, certify the issue for appellate review. 4. After providing the appropriate time for the Veteran to respond to the SOCs, readjudicate the claims on appeal. Specific to the claim for an initial rating greater than 10 percent for a right 4th metatarsal stress fracture, this readjudication should include consideration of the March 2018 and November 2018 VA examination reports on foot conditions. If any decision remains adverse to the Veteran, issue an SSOC, allow the appropriate time for response, and return the case to the Board. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.