The appellant, veteran Everett L. Buckley, appeals through counsel an October 1, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying an increased rating
I. Background
The appellant had active duty in the U.S. Army from September 1941 to November 1945. R. at 15. In 1946, he was awarded service connection for pes planus rated at 0%, effective the day after his separation from service. (“Pes planus” is flat feet. DoRland’s Illustrated Medical Dictionary 1268 (28th ed.1994).) Since that determination, the veteran has on several occasions submitted medical evidence in support of claims for an increased rating for his pes planus, much of which describes pain in the veteran’s legs and feet. See, e.g., R. at 58 (July 1952 VA examination report describing “pain” in veteran’s “arches and legs”), 231 (June 1990 VA examination report indicating that veteran complained of leg cramps). After several VA regional office (RO) decisions on the matter (see, e.g., R. at 68 (VARO decision granting 10% rating for service-connected pes planus), 214 (RO denial of claim for increase)), the veteran received in September 1990 a rating of 30%, effective January 29, 1990 (R. at 236). The September 1990 decision noted that the veteran suffered “cramping and pain in legs” attributed to non-service-connected diabetes. Ibid. The veteran has continued to apply for increases above 30% for his pes planus and to submit evidence in support thereof. See, e.g., R. at 258 (rating decision denying increase), 307 (confirmed rating decision).
In October 1990, the veteran filed with the RO a claim for “service connection” for his “legs and thighs as proximately due to or the result of [his] service[-]connected pes pla-nus”. R. at 239. He stated: “Please consider this a claim for increased benefits to include the [leg and thigh] disabilities”; he described “pain” in the “lower half of [his] body” (ibid.) but did not describe or refer to any diagnosis or specific condition (see ibid.). A February 1991 RO decision on the issue of “SC for bilateral lower-extremity conditions as secondary to bilateral pes planus” denied service connection “for bilateral lower degenerative joint disease of It. lower leg and diabetic neuropathy of BIL lower extremities”. R. at 258. Subsequently, the RO received a December 1990 letter from Dr. Pyle that described “tenderness” in the veteran’s left calf but Dr. Pyle “[could] not say definitively whether or not the foot problems aggravate the left calf problems but this is possible”. R. at 261. The RO addressed Dr. Pyle’s letter in a March 18, 1991, confirmed decision that stated: “The evidence does not show that [the] veteranas] left leg and arthritis are secondary to [service-connected] pes planus”. R. at 266.
The veteran’s service organization representative submitted a Notice of Disagreement (NOD) dated March 26, 1991, that included the statement: “[P]lease accept this memo[randum] as a Notice of Disagreement on behalf of Mr. Buckley relative to the bilateral lower-extremity condition pertaining to the left leg” (R. at 268); attached thereto was a document signed by Mr. Buckley that included the statement: “Please accept this as a total disagreement to the [February 1991] decision.... I feel that the pes planus ... has caused my lower extremities to develop[ ] to their present condition and not the diabetes alone.” (R. at 269). The veteran then filed in May 1991 a VA Form 1-9, Substantive Appeal to the BVA (Form 1-9), regarding “[e]ntitlement to bilateral lower[-]extremity conditions as secondary to ... pes planus” (R. at 280) in which he alleged cramps in both of his knees and calves. Ibid. In June 1991, a private podiatrist noted that the veteran suffered “overuse syndrome” in his leg muscles due to an irregular gait which compensated for pronation of the foot due to pes planus. R. at 285. Later that month, the RO denied service connection for “bilateral lower leg conditions”, specifically dis
In June 1995, the Board remanded the matter of “a lower[-]extremity disability, manifested as diabetic neuropathy and degenerative joint disease of the left knee, developed secondary to service-connected pes planus” for further factual development, specifically noted previous medical findings of “overuse” (R. at 397-98), and ordered that the matter be returned to the Board thereafter “if in order” (R. at 400) (“The appellant need take no action unless otherwise notified”). An August 1995 VA examination report noted that, in addition to diabetic neuro-pathy, “some of’ the veteran’s leg cramping “may be related to abnormal foot posturing while walking”. R. at 408. The case was subsequently returned to the Board which, in the October 1, 1996, BVA decision here on appeal, denied an increased rating above 30% for the veteran’s service-connected pes pla-nus and denied service connection for diabetic neuropathy and DJD as secondary to pes planus. R. at 3.
II. Analysis
A. Rating Increase
A claim for an increased rating is a new claim, not subject to the provisions of 38 U.S.C. § 7104(b) prohibiting reopening of previously and finally disallowed claims except upon new and material evidence. See Proscelle v. Derwinski,
Accordingly, we now review his entitlement to an increased rating for bilateral pes planus, currently rated as 30% disabling. The VA rating schedule for “Flatfoot, acquired”, provides:
Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo aehillis [sic] on manipulation, not improved by orthopedic shoes or appliances.
Bilateral.50%
Unilateral.30%
Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:
Bilateral.30%
Unilateral.20%
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5276 (1998).
In the present case, the Board de~ termined that the criteria for a rating above 30% for bilateral pes planus were not met.
B. Secondary Service Connection
In addition to an increased rating for his pes planus, the veteran asserts that he reasonably raised a claim regarding “leg cramping and other dysfunction of his lower extremities [that] were secondarily caused by his bilateral pes planus” (Brief (Br.) at 7), that that claim was well grounded (Br. at 9), and that the Board erred by failing to adjudicate the matter fully (ibid.). However, the veteran has conceded in his brief that “his left knee disorder is not service connectable secondary to his altered gait by the bilateral pes planus”. Br. at 7; see also Br. at 9. Hence, he has abandoned that issue on appeal, and the Court will thus not review the Board’s denial of service connection for DJD in the veteran’s left knee. See Green (Doris) v. Brown,
The Court has held that where a “review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the RO for development and adjudication of the issue.” Suttmann v. Brown,
This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp.,
Just as the Court’s jurisdiction is dependent on a jurisdiction-conferring NOD, the Board’s jurisdiction, too, derives from a claimant’s NOD. See Marsh v. West,
Two recent decisions of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarify the extent to which specific arguments regarding claims must appear in an NOD and the extent to which those arguments — as opposed to the underlying claims in support of which those arguments are advanced — must be raised to the Board in order for the Board to be required to consider them and for this Court properly to consider them. As to the first matter, the Federal Circuit in Ledford v. West held that this Court is without jurisdiction to review challenges to a BVA denial of a claim as to which no timely NOD had been filed but, in so doing, stated that an appellant’s “legal reasoning supporting such a challenge need not appear in the NOD, see 38 C.F.R. § 20.201 (1998)”. Ledford,
When read together and in the context of the prior precedent described above, Ledford and Collaro support the proposition that this Court has jurisdiction over claims that an appellant has reasonably raised to the RO and that the BVA has failed
In this ease, the veteran’s NOD consisted of both his own statement and the letter to which the statement was attached that was submitted in March 1991 on his behalf by his service organization representative. R. at 268-69. (The Court notes that the Secretary’s characterization in the Table of Contents to the Record on Appeal of an August 1991 letter (see R. at 312) as the NOD does not affect our de novo determination of the matter, see Beyrle, supra (Court may construe document as NOD even when Secretary did not construe it as such).) His NOD expressed “total disagreement” (R. at 269) with the RO “relative to the ... secondary conditions” (R. at 268). Further, the veteran’s Form 1-9 appealed the matter of “[entitlement to bilateral lower[-]extremity conditions as secondary to ... pes planus” (R. at 280) and in June 1991 a hearing officer denied service connection for “bilateral lower leg conditions”, specifically discussing DJD, diabetic neuropathy, and “overuse syndrome” (R. at 295). The record contains numerous medical reports of problems with the lower extremities, such as cramping, due or possibly due to an abnormal gait caused by pronation of the feet caused by pes pla-nus. See, e.g., R. at 285, 337, 374, 408.
The Secretary argues that the veteran’s entitlement to secondary service connection for a lower-extremity disability has already been “actually raised and adjudicated” by the Board, apparently asserting that the Board’s discussion of DJD and diabetic neuropathy encompassed any and all possible lower-extremity disabilities presented in the medical records in the record on appeal. Motion at 15. Again, the Court notes that the veteran disagreed with the initial RO decision in February 1991 regarding whether the veteran was service connected for any “bilateral lower[-]extremity conditions” (R. at 259), and did not limit his NOD to the RO’s denial of secondary service connection for DJD and diabetic neuropathy (R. at 268-70). See Collaro,
In light of the foregoing, the Court holds that the veteran’s March 1991 NOD did in fact raise the issue of all possible bilateral lower-extremity conditions secondary to bilateral pes planus, and was not limited to the specific conditions of DJD and diabetic neuropathy addressed in the initial RO determination and in the subsequent RO and BVA decisions that followed and, further, that the Court has jurisdiction over the matter. See Collaro, supra. Finally, the fact that the Board issued a decision remanding the veteran’s claim for further development prior to the BVA decision here on appeal but subsequent to the RO determination underlying the veteran’s NOD (R. at 396-400) does not affect our jurisdiction; disposition of a claim by an RO upon remand from the Board does not create a new decision by the AOJ. See Hamilton,
The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
However, where an appellant has not been harmed by an error in a Board determination, the error is not prejudicial. See 38 U.S.C. § 7261(b) (“Court shall take due account of the rule of prejudicial error”); Edenfield v. Brown,
Under 38 C.F.R. § 3.310(a) (1998), secondary service connection is to be awarded when a disability “is proximately due to or the result of a service-connected disease or injury”. A claim for secondary service connection must, as must all claims, be well grounded under 38 U.S.C. § 5107(a). See Dinsay v. Brown,
On the basis of a de novo review of the record on appeal, the Court holds that the veteran has proffered evidence sufficient to well ground a claim for lower-extremity secondary service connection in the form of medical evidence of current calf pain and medical evidence linking that calf pain to his pes planus, including records from a December 1990 private medical examination (R. at 261 (noting that it was “possible” that the appellant’s bilateral foot problems aggravated his left-calf problem)), a June 1991 examination (R. at 285 (opining that foot pain caused overuse syndrome of the muscles of the lower and upper leg)), a January 1993 private examination (R. at 374 (noting that pronation impacted the use of the lower extremities)), and a July 1995 VA examination (R. at 408 (noting that leg cramps may be related to abnormal foot posturing while walking)). Accordingly, the Court holds that the failure of the Board to address the veteran’s well-grounded secondary-service-connection claim was prejudicial error for which remand is in order.
III. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the submissions of the parties, the Court affirms in part the October 1, 1996, BVA decision (as to the determination that the veteran is not entitled to an increased rating for his service-connected pes planus) and remands the matter of secondary service connection for conditions of the lower extremities (other than DJD of the left knee and diabetic neuropa-thy) for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5107, 7104(a), (d)(1); 38 C.F.R. §§ 3.310(a), 4.71a, DC 5276; Fletcher v. Derwinski,
AFFIRMED IN PART; REMANDED IN PART.