BVA9508155 DOCKET NO. 93-11 003 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a disability of the right and left hips, to include arthritis. 2. Entitlement to service connection for cellulitis of the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Susan S. Toth, Associate Counsel INTRODUCTION The veteran had active service from February 1973 to February 1976. This matter arises from a May 1991 rating decision issued by the Atlanta, Georgia, Regional Office (RO), whereby the RO denied the veteran's claim for service connection for disabilities of the right and left hips, to include arthritis. This matter also arises from a rating decision of November 1992, whereby the RO denied the veteran's claim for service connection for cellulitis of the right foot. Following the veteran's relocation, the Nashville, Tennessee, RO, certified the case for appeal in May 1993. Before the case was received at the Board of Veterans' Appeals (Board), the veteran had perfected an appeal with respect to the issue of an increased evaluation for pes planus, which was evaluated as 10 percent disabling. Following a hearing conducted at the RO in April 1992, the hearing officer determined that an increased evaluation to 30 percent was warranted. The hearing officer's October 1992 decision was implemented by rating decision of November 1992. The assignment of an increased evaluation is considered a substantial grant of the benefit sought on appeal; therefore, the issue of an increased rating for pes planus is no longer pending before the Board. The Board notes that a rating decision was issued in January 1993 which denied the veteran's claim for a total disability rating based on individual unemployability. The following month, the veteran submitted a substantive appeal with respect to the issue of service connection for cellulitis of the right foot. Therein, he also expressed disagreement with the denial of his claim for a total disability rating. Since this issue was not certified for appeal and since it is not inextricably intertwined with those issues presently on appeal, it is referred to the RO for appropriate consideration, to include the issuance of a statement of the case. The veteran has implicitly raised the issue of entitlement to nonservice-connected pension benefits by virtue of his service during a period of war and his employment status. See 38 C.F.R. § 3.151(a) (1994). This issue is also referred to the RO for consideration, since it was not developed for appeal and is not inextricably intertwined with the issues presently on appeal. See Kellar v. Brown, 6 Vet.App. 157 (1994). REMAND A review of the evidence in this case reflects that the veteran is claiming service connection for his bilateral hip disability on the basis that it was caused by or aggravated by his service connected flat feet. See transcript of his hearing on appeal. The United States Court of Veterans Appeals has held in a recent case that service connection may be assigned for disability that was aggravated by a service connected disability. See Allen v. Brown, No. 93-245 (U.S. Vet. App. March 17, 1995). The RO has not had the opportunity to adjudicate this case in light of the Allen case. Since the issue of secondary service connection is an issue which is inextricably intertwined with the service connection issue, it is necessary to have the RO make the initial determination with respect to that issue to include a determination as to whether the claim is well grounded. Accordingly, the case is REMANDED back to the RO for the following development. 1. The RO must adjudicate the question of secondary service connection for bilateral hip disability to include the question of whether the bilateral hip disability may be entitled to service connection on the basis that it was caused by or aggravated by the service connected flat feet. In making that determination, consideration must be given to the Allen case cited above. Obviously, such a determination must be preceded by a finding on the question of whether the claim is well-grounded. If so, the RO is to ensure that the duty to assist has been complied with. 2. If the claim is denied, the RO should issue the appellant and his representative a supplemental statement of the case which informs them of the decision in the case and they should be given the opportunity to respond. Thereafter, the claim should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the appellant unless he receives further notice. The issue of service connection for cellulitis of the right foot is being held in abeyance at this time. C.W. SYMANSKI Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).