Citation Nr: 1004147 Decision Date: 01/28/10 Archive Date: 02/16/10 DOCKET NO. 05-39 019A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen claim of entitlement to service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. 3. Entitlement to service connection for a right foot disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to July 1976. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an October 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Indianapolis, Indiana, which denied the Veteran's application to reopen a previously denied claim for service connection for a right ankle disorder, and denied his claims for service connection for a left ankle disorder and a right foot disorder. In November 2006, the Veteran testified at a local hearing before a decision review officer at the Indianapolis RO. A transcript of this proceeding has been associated with the claims folder. The issue of entitlement to service connection for a right foot disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center ("AMC"), in Washington, DC. FINDINGS OF FACT 1. A November 1986 Board decision denied service connection for a right ankle disorder based on a finding that a chronic right ankle disorder was not incurred during service and did not develop within one year of service separation. 2. The evidence submitted since the November 1986 Board decision is either cumulative or redundant and, when considered with previous evidence of record, does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right ankle disorder, or raise a reasonable possibility of substantiating the claim. 3. The competent evidence of record reveals that the Veteran does not have a current, chronic left ankle disorder. CONCLUSIONS OF LAW 1. The November 1986 Board decision that denied service connection for a right ankle disorder is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2009). 2. New and material evidence having not been received, the claim of entitlement to service connection for a right ankle disorder may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2009). 3. A chronic left ankle disorder was neither incurred during service, nor within one year of service separation. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). a.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). Additionally, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The duty to notify requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. On March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. In this case, VA essentially satisfied the notification requirements of the VCAA by means of a letter dated August 2004. The RO informed the appellant of the types of evidence needed in order to substantiate his claims for service connection; the division of responsibility between the appellant and VA for obtaining the required evidence; and advised the appellant to provide any information or evidence in his possession that pertained to such claim. This letter further advised the appellant of the criteria pertaining to what constitutes new and material evidence, the fact that his claim had been previously denied in an earlier Board decision, and the specific reasons for the previous denial. The Board finds that these notice requirements were satisfied by means of a letter dated January 2007. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any error as to the timeliness of that notice is moot. See Dingess/Hartman v. Nicholson, supra. b.) Duty to Assist With regard to the duty to assist, the claims folder contains the Veteran's service treatment records, post-service private and VA treatment records, Social Security Administration ("SSA") medical records and a VA examination report dated August 2004. Additionally, the claims file contains the Veteran's statements in support of his claim. With regard to the Veteran's claim of a left ankle disorder, the Board notes that the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As noted above, the Veteran was afforded a VA examination in August 2004. With regard to the Veteran's claim of service connection for a left ankle disorder, the Board finds that the 2004 examination is sufficient to resolve the question of whether or not the Veteran has a current disability of the left ankle. The VA examiner indicated that he had reviewed the complete evidence of record, examined the Veteran, reviewed diagnostic tests, and elicited from the Veteran his claimed history of a left ankle injury in service. He nevertheless concluded that the Veteran's left ankle was normal. The Board also notes the case of Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), wherein the appellant argued that the Board was obligated to reopen his claim because the RO had arranged for an examination, and that the examination in question was inadequate. In that decision, the Court held that the Board was not obligated to reopen a claim merely because the RO reopened the claim and undertook development, such as obtaining a new examination or opinion. As such, in this case, although the RO arranged for the Veteran to undergo a VA examination and obtained an opinion regarding his claim for service connection for a right ankle disorder, a left ankle disorder and a right foot disorder, the Board is not obligated to reopen the claim solely as a consequence of that development having been conducted. Moreover, to the extent that such examination is inadequate insofar as how it addressed the Veteran's service connection claim, any such inadequacy is moot, as the Board is finding that new and material evidence has not been received sufficient to reopen the claim. See Woehlaert, supra. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. II. Applicable laws and regulations. The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for a disability resulting from personal injury suffered, or disease contracted, in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection for certain chronic diseases, such as arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2009). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). III. Analysis. 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a right ankle disorder. The first issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for a right ankle disorder. In November 1986, the Board denied the Veteran's claim of entitlement to service connection based on a finding that a chronic right ankle disorder was not incurred during service and did not develop within one year of service separation. At the time of the denial, the Board considered the Veteran's service treatment records, private post-service records showing treatment for a fractured right ankle in 1981, and the residuals thereof, and the Veteran's personal statements in support of his claim. Accordingly, the decision is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 5108, 7104; 38 C.F.R. § 3.156. As such, the issue for resolution before the Board is whether new and material evidence has been submitted sufficient to reopen the Veteran's claim of entitlement to service connection for a right ankle disorder. After a review of the evidence of record, the Board finds that new and material evidence has not been received since the Board's November 1986 denial of the claim. "New" evidence means evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Browns, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran initially applied for service connection for a right ankle disability in August 1985, claiming that he twisted his ankle in service, resulting in a chronic and disabling condition. On his application, however, he said that, while he believed that he had injured the right ankle, he was not actually sure if it was the left or the right. Although the Veteran claimed that his right ankle disorder was the result of an in-service injury, a review of the claims folder revealed that, in August 1981, he sustained a fractured dislocation of the right ankle after an accidental fall. A November 1985 rating decision thus determined that, although the Veteran's service treatment records indicated that he sustained a right ankle sprain in 1975 during service, the evidence showed that this was an acute injury that resolved. The RO concluded that his post-service surgical treatment and hospitalizations for his right ankle were unrelated to the acute affects from his right ankle injury in service. Following the Veteran's appeal of this rating decision to the Board, a November 1986 Board decision denied his claim, finding no evidence of a relationship between his right ankle disorder and service. In May 2004, the Veteran applied to have his previously- denied claim for service connection for a right ankle disorder reopened. A review of the claims folder shows that the new evidence submitted since the 1986 Board denial consists of examination reports from two private physicians, treatment records submitted in conjunction with the Veteran's application for SSA disability insurance benefits ("SSDI"), VA Medical Center ("VAMC") treatment reports, a VA examination report, lay statements from family members and friends, an RO hearing transcript, and additional personal statements from the Veteran in support of his claim. The private physician reports show that the Veteran was seen by Dr. T. Trainer in May 1986, and by Dr. M. Troxell in July 1987, with complaints of right ankle pain and swelling since his right ankle fracture in August 1981. The Veteran claimed that his continuing symptomatology was the result of his ankle not having healed properly following surgery. See report from Dr. Troxell, July 1987. There is no indication in either of these reports that the Veteran never told either doctor that he had sustained a sprained right ankle in service. There is also no evidence that either physician attributed his symptoms to that injury or any other incident in service. Upon examination, it was noted that his right ankle was markedly swollen with limited range of motion. Both physicians concluded that the Veteran had sustained a "rather severe injury to [his] right ankle" in 1981 and had subsequently developed severe degenerative arthritis in the joint. Private treatment reports pursuant to the Veteran's application for SSDI show that he continued to seek medical treatment for his right ankle for a number of years. A December 1996 podiatry report reveals that the Veteran was admitted to Westview Hospital for a right ankle fusion after complaining of having sustained a right ankle fracture in August 1981, with subsequent surgical reduction of the fracture that same year. The report noted that the Veteran continued to have chronic post-trauma pain and degenerative changes in the right ankle, and underwent a series of four ankle scopes over approximately eight years. Because his ankle continued to bother him, he subsequently underwent an attempted surgical fusion of the right foot and ankle in 1995, which was only partially successful, resulting in a cyst in the distal aspect of the right tibia. December 1996 x-rays and a CT scan confirmed the presence of severe degenerative changes about the right ankle joint. He subsequently underwent right ankle reconstruction with ankle arthrodesis and resection of the tibial cyst. Additional private treatment reports show that the Veteran's doctors continued to relate his right ankle problems to his 1981 fracture. There is no indication in these records that the Veteran reported that he had sustained an in-service right ankle injury, or that any of his treating physicians opined that any injury or other incident of service contributed to his right ankle disability. SSA records show that he was found to be disabled based on a primary diagnosis of osteoarthrosis and allied disorders, with a subsequent secondary diagnosis of personality disorders. These reports show that the basis of his disability determination were his private treatment records showing that he had fractured his ankle in 1981 and had required multiple subsequent surgical procedures. VAMC treatment records from August 2003 to December 2006 show no evidence of treatment for a right ankle disorder (during his RO hearing, the Veteran stated that he received all of his treatment for his right ankle from private practitioners). In August 2004, the Veteran was afforded a VA compensation and pension examination pursuant to his claim for service connection. He told the examiner that he had experienced chronic right ankle problems following a right ankle and foot injury in July 1975, when he was cut while climbing over a barbed wire fence. The examiner noted that the service treatment records showed that x-rays taken following that injury were negative and that the Veteran had only sustained a sprained right ankle. The examiner further noted that post-service private treatment records showed that the Veteran had sustained a fractured dislocation of the right ankle in 1981, followed by several surgeries. He diagnosed the Veteran with status post multiple arthroscopic surgeries of the right ankle due to the development of severe osteoarthritis and status post fusion of the right ankle in 1995. The examiner did not offer an opinion as to the likelihood of a connection between the Veteran's current right ankle disorder and service. The Board finds that the medical evidence currently of record, including the private treatment reports, the VA treatment reports, and SSA records, are new, in that they were not of record at the time of the Board denial. However, although this evidence is new, it is not material because it does not raise a reasonable possibility of substantiating the Veteran's claim. Specifically, there is no evidence that the physicians who examined and/or treated the Veteran opined that his right ankle disorder was the result of an injury or other incident of military service. Rather, these medical professionals concluded that his right ankle disability stemmed from his August 1981 right ankle fracture and dislocation. As such, these reports do not constitute new and material evidence. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (holding that evidence that is unfavorable to a claimant is not new and material). Also of record are several letters from the Veteran's family members and friends, who reported that they had witnessed the Veteran having pain and other symptomatology due to his right ankle disorder. Finally, the claims folder also contains a transcript of a November 2006 hearing before a decision review officer at the RO, in which the Veteran presented testimony concerning the origin of his right ankle disorder. He reported that after he sprained his ankle in service, he had continuing symptomatology, including pain and swelling, throughout the duration of service and continuing after service separation. There are also additional personal statements submitted by the Veteran, or on his behalf, claiming that his right ankle disorder stems from his 1975 injury in service. The Board notes that it has considered the statements from the Veteran's family and friends who reported witnessing the symptomatology of his right ankle condition, as well as the Veteran's continuing claims that his right ankle disability is the result of an in-service injury that occurred over 30 years ago. The Board finds that while the lay statements from these individuals are new, because they were not of record at the time of the Board decision, they are not material, in that they are essentially cumulative of the Veteran's own lay reports as to his history. Similarly, although the Veteran's testimony from his RO hearing and additional statements are new, the Board finds that they are not material because they are essentially a restatement of his contentions made at the time of the Board denial. The Board thus concludes that although the evidence received since the November 1986 Board decision is new, because it does not raise a reasonably possibility of substantiating the Veteran's claim, it does not constitute new and material evidence sufficient to reopen his claim of service connection for a right ankle disorder. 2. Entitlement to service connection for a left ankle disorder. The Veteran contends that he suffers from a current left ankle disorder as a result of an in-service injury, and has continued to experience symptomatology since service. A review of the Veteran's service treatment records shows that, in June 1975, he sustained a left ankle injury after falling into a hold during training. Treatment records show that he sought treatment for complaints of swelling and pain. Upon examination at the service aid station, it was noted that there was slight swelling of the left inside ankle with no discoloration. Although he was advised treat his ankle with warm water soaks and analgesic balm and return for examination the next day, the examiner provided no diagnosis. The treatment reports show that the Veteran did not return for treatment until one week later, when he was seen with complaints of bilateral fallen arches. At that time, there was no indication that he had any residuals from his left ankle injury. The Veteran's service treatment records show no further evidence of complaints of, treatment for or diagnosis of a left ankle disorder. His June 1976 service separation examination revealed normal findings in all systems, including the musculoskeletal system and lower extremities. As the Veteran's service treatment reports show that he sustained no chronic left ankle disorder in service, and there is no evidence showing the development of a chronic left ankle disorder within one year of service separation, service connection on a presumptive basis is not warranted. See 38 C.F.R. §§ 3.307, 3.309 (2009). The evidence of record reveals that the Veteran did not complain of, or seek treatment for a left ankle disorder until May 2004, when he submitted a claim for VA benefits. In August 2004, he was afforded a VA examination of his feet and ankles in conjunction with his claims of entitlement to service connection. The examiner noted that he had reviewed the complete claims folder, including the Veteran's service treatment reports and post-service records, performed a comprehensive physical examination, and reviewed x-ray reports, which revealed normal findings. He also noted the Veteran's history of subjective complaints. Upon examination, he noted that the left ankle presented a normal configuration with full range of motion, good stability of the ligaments and no pain on palpation and movement. While the Veteran had an antalgic gait, the examiner noted that this was due to the right leg and not the result of his in- service left ankle injury. The VA examiner found that, although the Veteran had sustained a sprain of the left ankle in service, he concluded that there were no residuals from his previous injury and that his left ankle was normal. VA treatment records also show no evidence that the Veteran either complained of, sought treatment for, or was diagnosed with a chronic ankle disability. The Veteran has also presented several lay statements from friends and family claiming to have knowledge that he has bilateral ankle disorders. Based on a complete review of the evidence of record, the Board finds that the evidence is against the Veteran's claim of entitlement to service connection for a left ankle disorder. As noted above, there is no competent evidence of record that the Veteran currently has a diagnosis of a left ankle disorder. As previously noted, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Moreover, although the Veteran contends that he currently has left ankle pain, mere pain is not a condition for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, because there is no evidence that the Veteran has ever been diagnosed with a current, chronic left ankle disorder, service connection on a direct basis is not warranted. The Board acknowledges the Veteran's contentions, as well as those of his friends and family, that he has a chronic left ankle disorder as a result of service. The Board also notes that the Veteran can attest to factual matters of which he had first-hand knowledge, such as ankle pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as there is no evidence that the Veteran, his friends or family, as lay persons, have been shown to be capable of making medical conclusions, their statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the Veteran is competent to report what comes to him through his senses, he does not have the medical expertise to make a determination as to causation. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). As noted, the Veteran has undergone several medical examinations, including by several private physicians, none of which found that he had a chronic left ankle disorder. In addition, the VA examiner specifically found that the Veteran's left ankle was normal. The Board finds the results of these evaluations by competent medical professionals to be more probative as to the existence of a current disability than the lay testimony by the Veteran and his friends and family. In short, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable to the Veteran's claim, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER New and material evidence not having been received, the claim to reopen the issue of entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a left ankle disorder is denied. REMAND The Veteran contends that he has a chronic right foot disorder due to an in-service injury. See RO hearing transcript, November 2006. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to adjudication of this claim. The Board notes that the Veteran was afforded a VA examination for his feet and ankles in August 2004. At that time, the examiner diagnosed the Veteran with degenerative osteoarthritis of the right foot and bilateral pes planus. The VCAA duty to assist does not include the duty to remand for a new examination due solely to the passage of time. Although the examiner noted that he had reviewed the complete claims folder, examined the Veteran, and elicited from the Veteran his history of right foot symptomatology, he did not provide an opinion as to whether any of the Veteran's right foot disorders were caused by, or were otherwise related to service. Because the Board may not rely on its own unsubstantiated medical conclusions, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), it must rely on an informed medical opinion in order to adjudicate a claim. In this case, because the VA examiner did not provide an opinion as to whether the Veteran's claimed right foot disorder are related to service, the Board concludes that another VA examination is necessary to determine whether any of the Veteran's disorders are service-related. Furthermore, as the claim is being remanded for another examination, an effort should be made to obtain updated VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain all VAMC treatment records pertaining to the Veteran's right foot since December 2006. Any negative reply should be specifically noted. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of his current right foot disorders. Any tests deemed necessary should be conducted. The claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must state that the claims folder has been reviewed. The examiner should elicit from the Veteran a complete history of his right foot complaints, including any injuries and medical treatment, and note that, in addition to the medical evidence, the Veteran's lay history has been considered. As to any disorders found, the clinician is asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to service, or is caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by active duty service. Any and all opinions must be accompanied by a complete rationale. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. 3. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case ("SSOC") and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs