Citation Nr: 1009941 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 08-21 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for right knee capsulitis, currently evaluated as 10 percent disabling. 2. Entitlement to an increased disability evaluation for right ankle sprain, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had service from October 1998 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Unfortunately, further development of the evidence is required before the Board can adjudicate the Veteran's pending petition to reopen his previously denied claim of entitlement to service connection for a left knee disability. So, regrettably, this issue is being remanded to the RO via the Appeals Management Center (AMC). VA will notify him if further action is required on his part. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's right knee capsulitis has been manifested by complaints of pain and limitation of motion, but without instability 2. The Veteran's service-connected right ankle sprain is not productive of marked limitation of motion; there is also no evidence of ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, or malunion of the os calcis or astragalus. 3. There is persuasive medical evidence indicating that the Veteran's left ankle sprain is proximately due to or the result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee capsulitis have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5262 (2009). 2. The criteria for an evaluation in excess of 10 percent for right ankle sprain have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5271 (2009). 3. A left ankle disability is proximately due to service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds 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. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA issued VCAA notice letters, dated in November 2006 and May 2008, from the agency of original jurisdiction (AOJ) to the appellant. The letters explained the evidence necessary to substantiate the Veteran's claims for increased disability evaluations and service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. In addition, these letters from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notice. Further, the Board finds that 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 claims. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claims. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Entitlement to Increased Disability Evaluations Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2009). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Analysis Right Knee Capsulitis The Veteran's right knee capsulitis is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260. According to Diagnostic Code 5260, a 10 percent rating is assigned when leg flexion is limited to 45 degrees. A 20 percent rating requires leg flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Regarding the Veteran's right knee capsulitis, the objective clinical evidence of record, throughout the rating period on appeal, does not show the Veteran has flexion limited to 30 degrees or extension limited to 15 degrees. His range of motion far exceeds these respective limits. Indeed, the medical evidence of record clearly indicates that he has essentially continuously had extension to 0 degrees, and that his flexion, at worst, and fully acknowledging his pain, is still to at least 75 degrees, including at his most recent VA examination in April 2007. VA considers "full" range of motion for the knee to be from 0 to 140 degrees (full extension to full flexion). See 38 C.F.R. § 4.71, Plate II. There is no objective clinical indication, however, that he has additional functional impairment, which would support an even higher rating. In this regard, the Board points out that the Veteran's VA examination was negative for objective evidence of instability, subluxation, weakness, abnormal movement, swelling, or deformity, although he reports experiencing fatigue and pain upon weight-bearing and repetitive motion. Likewise, there was no objective evidence of redness, heat, or crepitus, nor was there any evidence that he had an antalgic gait or other gait disturbance. Moreover, he had full motor strength. Similarly, the Veteran has pain and tenderness in his right knee, but he does not have overall moderate impairment of his tibia and fibula, significant limitation of motion in his knees, recurrent subluxation or lateral instability, dislocated semilunar cartilage, ankylosis, or X-ray confirmation of degenerative arthritis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5261, 5262. In concluding that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his right knee capsulitis, the Board has also considered whether the Veteran is entitled to a higher disability evaluation on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Veteran reports pain, he does not experience a significant loss of range of motion due to pain, fatigue, weakness, or lack of endurance due to repetitive use of the joint. Further, the current 10 percent disability evaluation contemplates the Veteran's complaints of pain, as well as any limitation of motion due to pain. There is no objective indication that the Veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current disability rating for his right knee capsulitis. Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, the VA does not have to refer this case to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Right Ankle Sprain Presently, the Veteran's right ankle sprain is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under Diagnostic Code 5271, a 10 percent disability evaluation is assigned where there is moderate limitation of motion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. A 20 percent disability evaluation is warranted where there is marked limitation of the ankle. Id. Upon reviewing the rating criteria in relation to the evidence for consideration, the Board finds that the Veteran's disability picture is most consistent with the currently assigned 10 percent disability evaluation, and that an increased disability evaluation is not warranted. The objective clinical evidence of record does not show that the Veteran has marked limitation of motion of his right ankle. Significantly, the Veteran's most recent VA examination, in April 2007, showed that the Veteran had range of motion of his right ankle from zero (0) to 15 degrees in dorsiflexion and from zero (0) to 30 degrees in plantar flexion, without complaint of pain. Inversion was to 20 degrees and eversion was to 10 degrees. See 38 C.F.R. § 4.71, Plate II (full range of motion for the ankles is zero (0) to 20 degrees dorsiflexion and zero (0) to 45 degrees plantar flexion). Upon examination, there was no ankylosis, atrophy of the muscles, or unstable ligaments. Therefore, the Board finds that the Veteran's right ankle symptomatology most closely approximates the criteria for the currently assigned 10 percent disability evaluation. The Board also considered whether the Veteran may be entitled to a higher rating under other potentially applicable Diagnostic Codes. With regard to the criteria under Diagnostic Code 5270, there is no evidence of ankylosis of the Veteran's right ankle. Likewise, under Diagnostic Code 5272, is no evidence of ankylosis of the Veteran's subastragalar or tarsal joint. Further, the findings do not warrant an evaluation under Diagnostic Codes 5273 and 5274, as there is no evidence of malunion of the os calcis or astragalus, nor is there evidence of an astragalectomy. See 38 C.F.R. § 4.71a, Diagnostic Codes 5273 and 5274. As such, the Board does not find that the medical evidence supports a schedular rating in excess of 10 percent for the right ankle. In concluding that the Veteran is not entitled to a disability evaluation in excess of 10 percent for his right ankle sprain, the Board has also considered whether the Veteran is entitled to a higher disability evaluation on the basis of functional loss due to pain pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the Veteran reports pain, he does not experience a significant loss of range of motion due to pain, fatigue, weakness, or lack of endurance due to repetitive use of the joint. Further, the current 10 percent disability evaluation contemplates the Veteran's complaints of pain, as well as any limitation of motion due to pain. There is no objective indication that the Veteran's symptoms result in any additional functional limitation to a degree that would support a rating in excess of the current disability rating for his right ankle sprain. Finally, the evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. Hence, the VA does not have to refer this case to the Director of Compensation and Pension Service for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to Service Connection Legal Criteria Service Connection - Generally A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Secondary Service Connection Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2008). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made and the veteran's claim was filed prior to the effective date of the revised regulation. Medical evidence is required to show this secondary cause- and-effect relationship; mere lay opinion will not suffice. See Lanthan v. Brown, 7 Vet. App. 359, 365 (1995). Analysis Based on the evidence of record, the Board finds that there is a preponderance of the evidence in favor of the Veteran's claim of entitlement to service connection for a left ankle sprain as due to his service-connected right knee and right ankle disabilities. 38 C.F.R. § 3.102. The Board acknowledges that the Veteran's service medical records do not show that the Veteran complained of or was treated for a left ankle disability during his military service, and that physical examination of the Veteran's left ankle was repeatedly normal. See 38 C.F.R. § 3.303(a) (service connection requires that the facts "affirmatively [show] inception or aggravation . . . ."). Likewise, the Board also acknowledges that the Veteran did not make any complaints specifically related to his left ankle at his military examinations, including at his discharge examination, and that there is no objective evidence of continuance of symptomatology during the years following the Veteran's discharge from service. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). Nevertheless, the Board notes that the provisions of 38 C.F.R. § 3.303(d) specifically permit a grant of service connection even when the initial diagnosis occurred after service, so long as there is competent medical evidence establishing the necessary link to service. Treatment records indicate that the Veteran began treatment for his left ankle in 2006. Treatment records show occasional complaints of left ankle pain, but without a diagnosed disorder. (See treatment notes from J. W., M.D.). Nevertheless, treatment records from Dr. W reflect that the physician felt it was as likely as not that the Veteran's pain in his left ankle was directly related to his right ankle and knee disability; the assessment was ankle pain. Although pain is not a disability for which service connection can be granted, see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), on VA examination in April 2007, the VA examiner noted that x-rays were negative, but diagnosed the Veteran with a left ankle sprain. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability . . ."). See also Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). Although the Board may not ignore medical opinion evidence, greater weight may be placed on one physician's opinion than another's depending on factors such as reasoning employed by the physicians and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this regard, the Board finds that the opinion provided by Dr. W, the physician that treated the Veteran for his service- connected right knee and ankle disabilities, as well as his left ankle complaints, has significant probative weight, as his opinion was based on a review of the record, knowledge of the Veteran's actual treatment and medical history, and a review of the relevant medical literature. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). Furthermore, the Veteran provided credible statements regarding the events of his service and his treatment for a left ankle disability since that time. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) ("In order for service connection for a particular disability to be granted, a claimant must establish he or she has that disability and that there is 'a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service.'" Citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Accordingly, the evidence in this case is in equipoise, with both favorable and unfavorable evidence on record. Under the law, when after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 1991). In addition, when all of the evidence is assembled, the VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). With the resolution of reasonable doubt in the Veteran's favor, service connection for a left ankle sprain is granted. ORDER Entitlement to a disability rating in excess of 10 percent for right knee capsulitis is denied. Entitlement to a disability rating in excess of 10 percent for right ankle sprain is denied. Entitlement to service connection for a left ankle disability, including as secondary to service-connected disabilities, is granted. To this extent, the appeal is allowed. REMAND The Veteran's claim of entitlement to service connection for a left knee disability was initially denied by the RO in a September 2003 rating decision. No appeal was taken from that determination, and it is final. See 38 U.S.C.A. § 7105 (West 2002). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board remains whether new and material evidence has been presented to reopen the claim. In this regard, the Board notes that, the November 2006 VCAA letter did not adequately inform the Veteran of the information and evidence necessary to substantiate a petition to reopen a previously denied claim. Specifically, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court issued a decision that established significant new requirements with respect to the content of the VCAA notice for reopening claims. According to the Court, in the context of a claim to reopen, the Secretary must look at the bases for the denial in the prior decision and to respond by providing the appellant 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. Further, in providing instruction as to what information would be considered "new and material", the Court indicated that "material" evidence would include (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. "New" evidence would be considered new only if it had not been submitted previously to VA and was neither "cumulative nor redundant" of evidence already in the record. In this light, the November 2006 VCAA notification letter sent to the Veteran provided inadequate notice. The VCAA letter did not inform the Veteran that new and material evidence, pursuant to the revised version of 38 C.F.R. § 3.156(a), could be submitted to reopen his claim. Moreover, the letter did not indicate what type of evidence would qualify as "new" evidence or specifically inform the veteran as to what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denials. The VCAA notification letter must inform the Veteran that, in order to reopen his claim, he must show that his left knee disability was incurred during service, as well as that he had a current diagnosis of a left knee disability. In view of the foregoing, the Board finds that the claim must be remanded for compliance with the VCAA and recent case law. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA will seek to provide and which evidence the claimant is to provide, is remandable error). Accordingly, the case is REMANDED for the following action: 1. Please send the Veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159(b). The letter must: (a) inform him of the information and evidence that is necessary to reopen his previously denied claim of entitlement to service connection for a left knee disability, in compliance with the current version of 38 C.F.R. § 3.156(a) and the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006)); (b) inform him of the information and evidence that VA will seek to provide; (c) inform him of the information and evidence he is expected to provide; and (d) request that he provide any evidence in his possession pertaining to his claim to VA. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). See, too, Huston v. Principi, 17 Vet. App. 195 (2003). In particular, the Veteran must be apprised of the basis for the prior final denial, including evidence of in-service incurrence of a left knee disability and a diagnosis of a current left knee disability, and informed of what evidence would be necessary to substantiate the element or elements required to establish service connection for a left knee disability that was found insufficient in the previous denial. 2. Then, the RO should readjudicate the Veteran's claim, with application of all appropriate laws and regulations, and consideration of all additional information obtained since issuance of the most recent supplemental statement of the case, including any evidence obtained as a result of this remand. If the claim on appeal remains denied, the appellant and his representative should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. Thereafter, the case should be returned to the Board, as appropriate. The purpose of this remand is to afford the Veteran due process of law, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs