Citation Nr: 0000368 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 96-27 486 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a left ankle disorder. 2. Entitlement to service connection for glaucoma. 3. Entitlement to service connection for a right ankle disorder. 4. Entitlement to service connection for Chopart dislocation of the feet. 5. Entitlement to service connection for claw toes of the right foot. 6. Entitlement to an evaluation in excess of 10 percent for left leg patella tenosynovitis. 7. Entitlement to an evaluation in excess of 10 percent for right leg patella tenosynovitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from September 1961 to September 1963 and from October 1965 to September 1981. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) New Orleans Regional Office (RO). In a February 1996 rating decision, the RO denied the claim of service connection for glaucoma. In a November 1997 rating decision, the RO denied the claims seeking evaluations in excess of 10 percent for right and left leg patella tenosynovitis. In a July 1998 rating decision, the RO again denied the claims seeking evaluations in excess of 10 percent for right and left leg patella tenosynovitis; declined to reopen a previously denied claim of service connection for a left ankle disorder; and denied the claims of service connection for Chopart dislocation of the feet, claw toes of the right foot, and a right ankle disorder. The appellant disagreed with each of these determinations and this appeal ensued. With respect to the left ankle disorder, the Board herein determines that the appellant has submitted new and material evidence to reopen the previously denied claim. Thus, the issue on appeal is as stated on the title page above. Before proceeding, the Board must address a procedural matter. By February 1996 rating decision, of which the appellant was informed by February 12, 1996 letter, the RO declined to reopen its March 1989 decision that denied service connection for esotropia of the left eye. The appellant filed a timely notice of disagreement with that decision in February 1996 and the RO issued a statement of the case in May 1996. The appellant had until February 12, 1997 to file a substantive appeal. See 38 C.F.R. §§ 20.202, 20.302(b) (substantive appeal must be filed within one year of notice of rating decision (a period ending February 12, 1997) or within 60 days of issuance of the statement of the case (a period ending in July 1996), whichever is later (February 12, 1997)). The appellant filed a VA Form 9 (Appeal to Board of Veterans' Appeals) in July 1996, but did not address the issue of service connection for esotropia of the left eye. The record does not show any subsequent discussion relevant to this claim until January 1998. Because the appellant did not file a substantive appeal within the applicable time frame for doing so, the Board does not have jurisdiction to address the issue. In Fenderson v. West, 12 Vet. App. 119, 128-31 (1999), the U.S. Court of Veterans Appeals (since renamed the U.S. Court of Appeals for Veterans Claims, hereinafter the Court) held that the Board did not err when it decided that it did not have jurisdiction over an issue for which there was a notice of disagreement and a statement of the case, but no timely substantive appeal. See also Archibold v. Brown, 9 Vet. App. 124, 130-32 (1996) and Roy v. Brown, 5 Vet. App. 554, 555 (1993) (request for appellate review completed by a timely substantive appeal). In Marsh v. West, 11 Vet. App. 468, 470-72 (1998), the Court held procedurally deficient the Board's sua sponte determination that a notice of disagreement was untimely, necessitating a remand so that the appellant could present argument on that point. As noted in Marsh, though, that scenario is different from that where a valid notice of disagreement has been submitted. The notice of disagreement here "encompass[es] also any question of jurisdiction because a claim that an administrative agency . . . possesses jurisdiction is always already implicit in any substantive claim." Id. at 470. Hence, the analysis and outcome illustrated by Fenderson dictate the analysis and outcome in this case. The Board is mindful of a recent VA General Counsel opinion, VA O.G.C. Prec. Op. No. 9-99 (Aug. 18, 1999), which held that the Board has authority in the first instance to address the question of timeliness of a substantive appeal, provided the appellant was afforded appropriate procedural protections to assure adequate notice and a chance to be heard on that aspect of the claim. In this case, he was informed in the June 1996 statement of the case that he had to file his substantive appeal within 60 days of issuance of the statement of the case or within the remainder of the one-year period from the date of the letter informing him of the rating decision. "If we do not hear from you within this period, we will close your case." This notice adequately and accurately informed him of the action needed to perfect the appeal by submission of a substantive appeal by, at the latest, February 12, 1997. The facts show that he failed to do so. While the record does not show that he was provided specific opportunity to offer evidence or argument on the jurisdictional aspect of the claim, the Court's decision in Fenderson is based on similar facts as presented here. Thus, consistent with that holding, the issue of service connection for left eye esotropia is not now before the Board. The claims of entitlement to an evaluation in excess of 10 percent for left leg patella tenosynovitis and right leg patella tenosynovitis are addressed below in the Remand portion of this decision. FINDINGS OF FACT 1. The RO declined to reopen the claim of service connection for a left ankle disorder in a March 1989 rating decision; the appellant was notified by the RO on May 17, 1989; he did not perfect an appeal as to that issue. 2. Additional evidence supplied for the record subsequent to March 1989 is new and material with respect to the claim of service connection for a left ankle disorder. 3. No competent evidence has been submitted linking post- service findings of left ankle disorder to service. 4. No competent evidence has been submitted linking post- service findings of glaucoma to service. 5. No competent evidence has been submitted linking post- service findings of right ankle disorder to service. 6. No competent evidence has been submitted linking post- service findings of Chopart dislocation of the feet to service. 7. No competent evidence has been submitted linking post- service findings of claw toes of the right foot to a service- connected disability. CONCLUSIONS OF LAW 1. The appellant has submitted new and material evidence to reopen a claim of entitlement to service connection for a left ankle disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The claim for service connection for a left ankle is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for glaucoma is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for a right ankle disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim for service connection for Chopart dislocation of the feet is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 6. The claim for service connection for claw toes of the right foot is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Finality of Service Connection Claim for a Left Ankle Disorder In January 1998, the appellant filed an application seeking, in part, to reopen a claim of service connection for a left ankle disorder. He had previously claimed service connection for a left ankle disorder, but the claim was denied by March 1989 rating decision. The RO reasoned that a left ankle sprain noted in service medical records was acute and transitory and resolved prior to separation from service. In essence, the RO denied the claim because the current evidence of record did not show current left ankle disorder and as the record did not include evidence linking the then current left ankle disorder with in-service injury. The RO informed him of the decision in a May 17, 1989 letter. Because he did not appeal any of this determination within one year of the notice, the March 1989 rating decision is final. The exception to this rule of finality is when an appellant submits new and material evidence with respect to a final claim. In that case, a claim will be reopened and adjudicated on the merits. See 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Whether new and material evidence is submitted is a jurisdictional test, with the Board being required to reopen if such evidence is submitted and prohibited from reopening and considering the claim if such evidence is not submitted. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Winters v. West, 12 Vet. App. 203, 206-07 (1999). In addressing whether new and material evidence has been submitted, the Board must review the evidence before VA at the time of the prior decision, identify any additional evidence now before VA, and determine whether that additional evidence is both new and material. If so, then the claim is reopened for adjudication on the merits. If not, the analysis must end as the Board lacks jurisdiction to review the merits of the claim. See Barnett, 83 F.3d at 1383-84. In a July 1998 rating decision, the RO declined to reopen the claim because the appellant had not submitted new and material evidence. He filed a timely notice of disagreement with that determination and this appeal ensued. In addressing the appellant's application to reopen, VA must (1) determine whether the appellant has presented new and material evidence; (2) if new and material evidence has been presented, reopen the claim and determine whether the claim as reopened is well grounded; and (3) if the claim is well grounded, evaluate the merits of the claim. Elkins v. West, 12 Vet. App. 209, 214 (1999); Winters, 12 Vet. App. at 206- 07. See Hodge v. West, 155 F.3d 1356, 1360 (Fed. Cir. 1998). New evidence that was not likely to convince VA to alter its previous decision could be material if it provided a more complete picture of the circumstances surrounding the origin of an injury or disability, even where it would not eventually convince VA to alter its rating decision. Hodge, 155 F.3d at 1363; Elkins, 12 Vet. App. at 214. The reopening standard provides for judgment as to whether new evidence bears directly or substantially on the specific matter and is so significant that it must be considered to fairly decide the merits of the claim. Fossie v. West, 12 Vet. App. 1 (1998). At the time of the March 1989 rating decision, the evidence of record included service medical records, including a July 1968 clinical record entry noting a left ankle sprain. The remaining service medical records are silent as to any left ankle symptomatology; in medical history reports, the appellant denied any such deformity. Also of record were various VA clinical and examination reports that do not refer to a left ankle disorder. Thereafter, the following evidence was received into the record. A December 1995 VA examination report noted a history of a left ankle sprain in 1968, but rendered no diagnosis. An August 1997 VA examination included a diagnosis of degenerative joint disease of the left ankle, with range of motion normal and not painful. A December 1997 VA clinical record noted complaints of left ankle pain and found range of motion limited and painful with mild diffuse swelling. The assessment was rule out changes to the left foot and ankle. A January 1998 VA clinical record reported complaints of left ankle pain and findings of left ankle tenderness without instability at the extremes of motion and no recent injury. As noted above, new and material evidence must be presented or secured since the time that the claim was finally disallowed on any basis and must be probative of only the element or elements specified as a basis for the last disallowance. Evans, 9 Vet. App. at 284-85. Thus, evidence presented after July 1998 must be new and material to the weaknesses of the claim prior to that time, namely the lack of any findings of a left ankle disorder following service and a the lack of any evidence linking a current disorder to the in-service injury. The additional evidence received into the record since the March 1989 rating decision, summarized above, is new in the sense that it was not before the RO in March 1989. It is also material as to one aspect of the RO's denial of the claim at that time. The December 1995 and August 1997 VA examinations and the December 1997 and January 1998 VA clinical records document current findings of a left ankle disorder, one of the reasons for the RO's March 1989 decision. The RO also denied the claim because the record did not contain evidence linking a current left ankle disorder to the in-service injury. The new evidence received into the record since March 1989 includes the December 1995 VA examination report noting a history of a left ankle sprain in 1968. This notation, coupled with the other evidence of record, provides a more complete picture of the claimed disability. Thus, the additional evidence submitted since the July 1998 rating decision is new and material as the claim. Since new and material evidence has been submitted, the appellant's application to reopen the claim is granted. II. Service Connection Claims A. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As the appellant served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, arthritis manifest to a degree of 10 percent within a year from the date of termination of such service shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The threshold question is whether the appellant has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the appellant must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For a claim to be well grounded, there must be competent medical evidence of a current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and competent medical evidence of a nexus, or link, between the in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498 (1995). See Grottveit, 5 Vet. App. at 93 (in questions of medical diagnosis or causation, well-grounded claim requires competent medical evidence of a plausible claim; lay assertions of medical causation cannot constitute competent medical evidence). If no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. B. Left Ankle Disorder Reviewing the evidence regarding the claimed left ankle disability discussed above, the record includes competent medical evidence of a left ankle disorder. The August 1997 VA examination report showed degenerative joint disease of the left ankle and the December 1997 and January 1998 VA clinical records noted left ankle symptomatology. In addition, the appellant contends this symptomatology is related to an in-service left ankle sprain noted in the service medical records. This evidence satisfies the first and second elements of a well-grounded claim. See Epps, 126 F.3d at 1468. As to the third element of a well-grounded claim, requiring competent medical evidence linking the current disorder to in-service injury, the only evidence discussing etiology of the left ankle disorder is the December 1995 VA examination report discussing a history of left ankle sprain in 1968. It appears, though, as the examiner did not note reviewing the evidence summarized here, that the examiner received this history from the appellant. This evidence, therefore, may represent information simply recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, and cannot constitute competent medical evidence. Such evidence cannot enjoy the presumption of truthfulness accorded by Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). LeShore v. Brown, 8 Vet. App. 406, 410 (1995). Thus, in simply recording the appellant's recollection of an in- service injury, the examiner did not offer an opinion linking the current disorder to the in-service injury. To the extent that this examination report based a finding on a recitation by the appellant of his own medical history, the information is not probative evidence as to the etiology of the disorder. As the evidence is not probative, it cannot form the basis of competent medical evidence. The only remaining evidence supporting a link between the current left ankle disorder and the injury in service is the appellant's own contentions. Generally, statements prepared by lay persons, who are ostensibly untrained in medicine, cannot constitute competent medical evidence to render a claim well grounded. A layperson can certainly provide an eyewitness account of an appellant's visible symptoms. Layno v. Brown, 5 Vet. App. 465, 469 (1994). However, the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge. For the most part, a witness qualified as an expert by knowledge, skill, experience, training, or education must provide medical testimony. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The record does not show that he has the requisite medical expertise to render such a medical opinion. Thus, his contentions alone cannot rise to the level of competent medical evidence to satisfy the third element of a well- grounded claim. Since the record does not include competent medical evidence linking current findings of left ankle disorder to service, the claim is not well grounded. As the claim is not well grounded, VA has no duty to assist in further development of the claim. 38 U.S.C.A. § 5107(a); Morton v. West, 12 Vet. App. 477 (1999). C. Glaucoma As to the first element of a well-grounded claim of service connection for glaucoma, June 1990 VA clinical records show the appellant's recollection of being told by a private optometrist in April 1990 that he had glaucoma as well as a past medical history of left eye injury in service. A February 1991 VA clinical record included an assessment of glaucoma. Thereafter, VA clinical, examination, and hospital reports in 1991 through 1997 noted findings of glaucoma. In June 1993, he underwent a trabeculectomy of the left eye. This evidence comprises competent medical evidence of a current disorder, thereby satisfying the initial element of a well grounded. The second element of a well-grounded claim requires lay or medical evidence of incurrence or aggravation of a disease or injury in service. The service medical records are silent as to glaucoma. However, the appellant testified at his July 1999 hearing before the undersigned that he had been treated for glaucoma since about January 1982. The truthfulness of this evidence must be presumed when determining whether a claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). This evidence satisfies the second element of a well-grounded claim. As to the third element of a well-grounded claim, the record must include competent medical evidence of a nexus, or link, between the in-service injury or disease and current disability. The only evidence discussing etiology of the current glaucoma is a December 1995 VA Agent Orange examination report and the appellant's own testimony in July 1999. The December 1995 examination report indicated as history that the appellant had glaucoma since about 1981 with documented decreased sight in the left eye at that time. Unfortunately, the record does not show glaucoma until February 1991 at the earliest; the service medical records are silent for glaucoma. It appears that the December 1995 VA examiner's information was not derived from the record, but from the appellant. This evidence, therefore, represents information simply recorded by a medical examiner, unenhanced by additional medical comment by that examiner. Thus, the evidence is not probative and cannot enjoy the presumption of truthfulness forming the basis of competent medical evidence. See LeShore, 8 Vet. App. at 410. Along similar lines, the appellant presented a January 1999 examination report, apparently relevant to a determination of the Social Security Administration, in which a physician noted a history of glaucoma in 1983. Again, the source of this history is unclear, but it does not appear that it was from a review of relevant medical records. Thus, the evidence is not probative and cannot enjoy the presumption of truthfulness forming the basis of competent medical evidence. Id. The appellant testified at the July 1999 hearing that a Dr. Roy told him in January 1982 that he had glaucoma that did not require surgical intervention. He claimed Dr. Roy prescribed eye drops to decrease his eye pressure. He also noted that Dr. Roy's office informed him that his records were destroyed and refused to provide a statement saying he had been treated. Absent a statement from Dr. Roy or medical records forming the basis for such statement, the appellant's testimony alone that he was treated in 1982 for glaucoma does not amount to competent medical evidence. Espiritu, 2 Vet. App. at 494-95. The record does not indicate that he has the requisite medical expertise to render a medical opinion. Because the record does not include competent medical evidence linking the current findings of glaucoma to service, the claim is not well grounded. Since the claim is not well grounded, VA is under no duty to assist the appellant in further development of the claim. 38 U.S.C.A. § 5107(a); Morton, 12 Vet. App. at 486. D. Right Ankle Disorder, Chopart Dislocation of the Feet, and Claw Toes of the Right Foot The service medical records include a February 1968 clinical record noting complaints of possible frostbite of the first toe on the left foot. Examination was within normal limits and some numbness was noted as to the first toe. A July 1970 X-ray report of the lower left leg and foot to rule out a fracture. The report noted no recent pain and no acute pathology of the right foot. The March 1981 separation examination report found abnormal lower extremities on clinical evaluation, described as pain in the lower extremities at times. The diagnoses included phlebitis, swelling lower extremity - 8 years. Service connection is in effect for thrombophlebitis of the right leg and chronic patellar tenosynovitis of the right and left legs. The appellant here claims service connection for right ankle disorder, Chopart dislocation of the feet, and claw toes of the right foot. The evidence relevant to these claims include the following: ? A VA clinical record entry in March 1995 showed the appellant's complaint of feet stiffness. ? VA examination in December 1995 showed diabetic neuropathy of both feet. ? A February 1996 VA clinical record noted complaints of pain and muscle spasm on the right side, "feet okay." ? July 1997 VA clinical records noted an "old" fracture of the foot and pain on ambulation or movement of the right ankle. ? A July to August 1997 VA clinical record, it was noted that the appellant complained of pain and swelling in the right foot, ankle and lower leg previously thought secondary to thrombophlebitis but later thought secondary to cellulitis. A bone scan was consistent with Charcot's foot. ? VA examination in August 1997 showed diagnoses of degenerative joint disease of the right ankle and probable old fracture of the right foot with degenerative joint disease. It was noted that the appellant informed the examiner that, while playing softball in 1967, he injured his right ankle. An x- ray report of the right ankle noted marked soft tissue swelling. An x-ray report of the right foot showed degenerative changes. ? VA examination in September 1997 included diagnoses of recent Charcot's foot; Chopart fracture/dislocation of the right foot (old - approximately 1968 to 1969); hallux abductovalgus with bunion deformity right foot probably secondary to Chopart fracture/dislocation; claw toes, right foot, semifixed secondary to Chopart fracture/dislocation; and an old fracture of the proximal phalanx of the hallux at the medial distal aspect. The examiner noted that the appellant informed him of an incident in service, in 1968 or 1969, in which the appellant injured his right foot during obstacle course training. ? September and October 1997 VA clinical records found a painful right foot and ankle requiring use of a special shoe. The diagnosis was Charcot's foot. ? A December 1997 VA clinical record showed assessments of Charcot's foot right and rule out changes to the left foot. ? A January 1998 VA clinical record indicated that the appellant related a history of right ankle injury over 20 years before. ? A February 1998 VA psychiatric clinical record noted a history of Charcot's disease of both feet. Right ankle disorder The evidence summarized above documented right ankle symptomatology and the appellant's contentions of a right ankle injury in service, thereby satisfying the first and second elements of a well-grounded claim. As to the third element, requiring competent medical evidence linking the current right ankle symptomatology to service, the first findings of a right ankle disorder are contained in a July 1997 VA clinical record. Thereafter, the evidence discussing the etiology of the right ankle disorder is limited to the August 1997 VA examination (appellant informed examiner of a 1967 injury), the September 1997 VA examination (appellant informed examiner of a 1968 or 1969 injury), and a January 1998 VA clinical record entry (appellant related a history of right ankle injury during or before 1978). Consistent in each document is the recitation that the appellant informed the examiner of the facts. As discussed above in a similar context, this evidence represents information simply recorded by a medical examiner, unenhanced by any additional medical comment by the examiner. Thus, it is not probative and cannot form the basis of competent medical evidence. See LeShore, 8 Vet. App. at 410. The record does not include competent medical evidence to satisfy the third and final element of a well-grounded claim. As the claim is not well grounded, VA is under no duty to assist the appellant in further development of the claim. 38 U.S.C.A. § 5107(a); Morton, 12 Vet. App. at 486. Chopart Dislocation of the Feet The initial finding of Chopart fracture or dislocation of the feet is contained in the September 1997 VA examination. Symptomatology, including stiffness of the feet, was first noted in the March 1995 VA clinical record. In addition, the appellant contentions, which must be presumed true, indicate that he suffered a foot fracture in service. These facts satisfy the first and second elements of a well-grounded claim. As to the third element, the only evidence referring to etiology of the Chopart fracture or dislocation is the September 1997 VA examination report, which noted an old fracture in 1968 or 1969, during the appellant's service. However, the examiner also noted that the appellant informed him of this history. This notation, therefore, represents information simply recorded by a medical examiner, unenhanced by any additional medical comment by that examiner. Thus, it is not probative and cannot form the basis of competent medical evidence. See LeShore, 8 Vet. App. at 410. The record does not include competent medical evidence to satisfy the third and final element of a well-grounded claim. Because the claim is not well grounded, VA is under no duty to assist the appellant in further development of the claim. 38 U.S.C.A. § 5107(a); Morton, 12 Vet. App. at 486. Claw Toes of the Right Foot The initial finding of claw toes of the right foot is contained in the September 1997 VA examination. Symptomatology, including stiffness of the feet, was first noted in the March 1995 VA clinical record. These findings satisfy the first element of a well-grounded claim. In this claim, the appellant alleges that this disorder was related to the Chopart fracture/dislocation. A well-grounded claim for secondary service connection requires medical evidence to support the alleged causal relationship between the service- connected disorder and the disorder for which secondary service connection is sought. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, the September 1997 VA examiner did relate the claw toes to the Chopart dislocation. However, as already noted above, the claim of service connection for the Chopart fracture/dislocation is not service connected. Therefore, the secondary service connection claim, requiring a linking between the current disorder and a service-connected disability is not well grounded. As the evidence does not include competent medical evidence linking the current claw toe disorder to a service- connected disability, the claim is not well grounded. Because the claim is not well grounded, VA is under no duty to assist in further development of the claim. 38 U.S.C.A. § 5107(a); Morton, 12 Vet. App. at 486. E. Other Considerations As to the right ankle, Chopart dislocation, and claw toe claims, the only remaining evidence supporting the necessary link between the current disorders and either in-service disease or injury or a service-connected disability is the appellant's own contentions. As already noted, the record does not show that he has requisite medical expertise to render a medical opinion to well ground the claim. See Espiritu, 2 Vet. App. at 494-95. Although where claims are not well grounded VA does not have a statutory duty to assist the claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claims. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, the RO fulfilled its obligation under § 5103(a) in the September 1998 statement of the case in which the appellant was informed that the reason for the denial of the claim was the lack of evidence linking the current findings of glaucoma, a right ankle disorder, Chopart dislocation, and claw toes of the right foot to service or a service-connected disability. Also, by this decision, the Board informs him of the evidence he lacks that is needed to well ground his claim. When the Board addresses in its decision a question that has not been addressed by the RO, in this case well groundedness, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the appellant has been accorded ample opportunity by the RO to present argument and evidence in support of his claim. Any error by the RO in deciding this case on the merits, rather than being not well grounded, was not prejudicial to the appellant. ORDER New and material evidence having been submitted to reopen a claim of entitlement to service connection for a left ankle disorder, the application to reopen is granted. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for Chopart dislocation of the feet is denied. Entitlement to service connection for claw toes of the right foot is denied. REMAND The most recent VA examination addressing the nature and severity of the service-connected right and left leg patella tenosynovitis was in September 1997. The Board is not required, pursuant to its duty to assist, to remand solely due to the passage of time since completion of an otherwise adequate examination. An exception to this general rule exists to the extent that the appellant asserts that the disability in question has undergone increased severity since the last examination. Here, the appellant has so asserted, and the claim for increased rating will be remanded for development. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The case is REMANDED for the following development: 1. The RO should schedule the appellant for an orthopedic examination to determine the nature and severity of the right and left leg patella tenosynovitis. The claims folder and a copy of this REMAND must be made available to the physician for review in conjunction with the examination. The pertinent history concerning the disabilities should be obtained, and all necessary tests and studies, including x-ray studies and range of motion measurements, should be accomplished. The report of examination should contain a detailed account of all orthopedic manifestations of the disabilities found to be present. The orthopedist should be asked to determine whether there is degenerative arthritis established by X-ray findings, the specific measurements of any loss of motion of the right or left leg, any recurrent subluxation or lateral instability of the knees, and any other limitation of function. The orthopedist should also be asked to express an opinion as to whether pain could significantly limit functional ability during flare-ups or with prolonged use, whether any pain or functional loss produced additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. 2. When the aforementioned development has been completed, the RO should review the record to ensure it is in compliance with this REMAND. If not, the RO should undertake remedial action before returning the claim to the Board. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). After the development requested above has been completed, to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals