12-33 806
12-33 806
Board of Vet. App.Nov 29, 2013Background
- The Veteran served on active duty from December 1973 to April 1976.
- VA Regional Office in Pittsburgh denied service connection for right foot hallux rigidus, claimed secondary to a service-connected left knee disability.
- Appellant is represented by the Veterans of Foreign Wars of the United States; the Board member is Harvey P. Roberts.
- The Board remanded because the Veteran submitted evidence to the Board in May 2013 without RO waiver, and the August 2013 informal presentation also lacked waiver.
- April 2011 VA examination found it speculative to relate right hallux rigidus to left knee disability and did not address aggravation; deemed the evidence insufficient to decide the claim.
- Remand actions include obtaining VA records, scheduling a new joints examination addressing causation and aggravation, and readjudicating the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Secondary service connection for right foot disability | Veteran argues right hallux rigidus is proximately due to or aggravated by the left knee disability. | Agency contends insufficient evidence on causation/ aggravation and requires medical clarification. | Remand warranted for new VA examination and record development. |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet. App. 79 (2006) (requires medical examination when evidence suggests possible link)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (medical records are in agency possession and must be obtained)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (remand authority and right to additional development)
