Citation Nr: 1032575 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 03-30 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right elbow disability claimed as secondary to the service-connected right foot disability. 2. Entitlement to an evaluation in excess of 20 percent for service-connected residuals of Lisfranc's dislocation, right foot. 3. Entitlement to an initial rating in excess of 20 percent for history of left ankle fracture with traumatic arthritis. 4. Entitlement to an initial rating in excess of 10 percent for right ankle traumatic arthritis. 5. Entitlement to an initial rating in excess of 10 percent for right shoulder acromioclavicular joint arthritis. 6. Entitlement to an initial rating in excess of 10 percent for lumbar spine disc bulge at L3-L4. 7. Entitlement to an effective date prior to November 14, 2006 for the grant of service connection for right ankle traumatic arthritis. 8. Entitlement to an effective date prior to June 5, 2006 for the grant of service connection for right shoulder acromioclavicular joint arthritis. 9. Entitlement to an effective date prior to June 5, 2006 for the grant of service connection for lumbar spine disc bulge at L3-L4. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at law ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from October 1978 to December 1979, and reserve component service, including active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeals from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to an evaluation in excess of 20 percent for service-connected residuals of Lisfranc's dislocation of the right foot was originally before the Board in September 2005 when the Board denied the claim. The Veteran appealed the September 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2006, the parties submitted a Joint Motion to Remand the claim. By an Order issued in February 2006, the Court vacated the September 2005 Board decision and remanded the claim to the Board for readjudication. In June 2006, the right foot claim was again before the Board when it was remanded for additional evidentiary development. The increased ratings issues for the right foot, the left ankle and the right ankle along with the effective date claim for the right ankle and the issues of whether new and material evidence have been received to reopen the claims of entitlement to service connection for a right shoulder disorder and a low back disorder were before the Board in August 2007. The increased ratings claims for the right foot and left ankle were denied and the other claims were remanded for issuance of a statement of the case. The Veteran appealed the August 2007 Board decision denying increased ratings for the right foot and left ankle to the Court. In a September 2009 Memorandum Decision, the Court set aside the Board's denials of increased ratings for the right foot and left ankle disabilities and remanded the claims back to the Board for adjudication consistent with the Memorandum Decision. The issues of entitlement to service connection for a cervical spine disorder and for a psychiatric disorder as well as the issues of entitlement to special monthly compensation based on the need for the aid and attendance of another and entitlement to a total disability rating based on individual unemployability (TDIU), have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of entitlement to service connection for a right elbow disability claimed as secondary to the service-connected right foot disability, entitlement to an evaluation in excess of 20 percent for service-connected residuals of Lisfranc's dislocation, right foot, entitlement to an initial rating in excess of 20 percent for history of left ankle fracture with traumatic arthritis, entitlement to an initial rating in excess of 10 percent for right ankle traumatic arthritis, entitlement to an initial rating in excess of 10 percent for right shoulder acromioclavicular joint arthritis and entitlement to an initial rating in excess of 10 percent for lumbar spine disc bulge at L3-L4, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. VA will inform the Veteran if any further action is required on his part. FINDINGS OF FACT 1. The first evidence of a formal or informal claim of entitlement to service connection for traumatic arthritis of the right foot as well as the first competent evidence of record linking traumatic arthritis of the right foot to the Veteran's service-connected disabilities is the report of a VA examination which was conducted on November 14, 2006. 2. A September 2003 rating decision denied service connection for a right shoulder disability; that decision is final. 3. In September 2004, a VA physician wrote a letter linking a right shoulder condition to the Veteran's service-connected disabilities. 4. On October 20, 2004, VA received the Veteran's claim of entitlement to service connection for a right shoulder condition. 5. A September 2003 rating decision denied service connection for a back disability; that decision is final. 6. In October 2004, VA received the Veteran's claim of entitlement to service connection for a back condition. 7. There is no competent evidence of record, dated prior to June 5, 2006, which links the currently existing low back disorder to the Veteran's service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to November 14, 2006 for the grant of service connection for traumatic arthritis of the right ankle have not been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2009). 2. The criteria for an effective date of October 20, 2004, but not prior, for the grant of service connection for the right shoulder disorder have been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2009). 3. The criteria for an effective date prior to June 5, 2006 for the grant of service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 defines VA's duty to notify and assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91. Thus, VA did not need to send the Veteran new notices in connection with his claims for earlier effective dates. As to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. In this case, whether an earlier effective date is warranted is based upon the evidence that was already in the claims file at the time the Veteran submitted his claims. VA did not provide the Veteran with an examination in connection with these claims for an earlier effective date, as they would not warrant an examination. See 38 U.S.C.A. § 5103A(d)(2). Specifically, a claim for an earlier effective date does not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A) - (C); see also 38 C.F.R. §3.159(c)(4)(A)-(C). In summary, the VCAA provisions have been satisfied relative to the issues decided herein. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102 (2009). The Veteran has not claimed that VA has failed to comply with the notice and duty-to-assist requirements of the VCAA and, in fact, informed VA he had no additional evidence to submit in April 2006 and July 2006. Earlier effective date criteria The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection and claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection based on a claim for service connection or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). In general, rating decisions that are not timely appealed are final and binding on a veteran based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. An appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision (by filing the NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the veteran (in the form of an SOC), and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement. 38 C.F.R. § 20.201. While special wording is not required, the notice of disagreement must be in writing and in terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review. Id. Entitlement to an effective date prior to November 14, 2006 for the grant of service connection for right ankle traumatic arthritis In February 2007, the RO granted service connection for right ankle traumatic arthritis and assigned a 10 percent disability evaluation effective from November 14, 2006. The RO found that the issue was raised by the examiner who conducted the November 14, 2006 VA examination. The effective date assigned was based on that finding. The Board finds that an effective date prior to November 14, 2006 is not warranted for the grant of service connection for traumatic arthritis of the right ankle. In March 2008, the Veteran's representative argued that the Veteran was entitled to an effective date prior to November 14, 2006 for the grant of service connection for right ankle traumatic arthritis. Attached was a letter from the Veteran's representative, dated in May 2006, claiming entitlement to service connection for right shoulder, right elbow and low back conditions. The copy was date stamped by VA in March 2007. The representative argued that the claim was filed at the Wichita RO prior to the Veteran and the representative receiving word of the case having been transferred to the St. Louis RO. Associated with the claims file is a copy of the letter referenced by the Veteran's representative which is date stamped June 5, 2006 by the Wichita RO. It is not apparent to the Board why a claim of entitlement to service connection for right shoulder, right elbow and low back conditions could be or should be construed as a claim of entitlement to service connection for traumatic arthritis of the right ankle. The Board finds the Veteran's representative's argument to be without merit. In May 2010, the Veteran's representative argues that VA should have assigned an effective date for the right ankle arthritis to the date of the Veteran's claim for an increase in his service- connected residuals of a right foot injury. The representative appears to argue this should be assigned as the Veteran was a lay person without medical knowledge and was not represented by an attorney at the time he filed for an increased rating for his service-connected foot disability. The representative's argument is without merit. The Board can find no reason why a claim for an increased rating for a right foot injury should also be construed as a claim of entitlement to service connection for traumatic arthritis of the right ankle. They are two different claims and two different disorders. There is no indication in the document claiming an increased rating for the right foot that any disability of the right ankle was also alleged. The Board's review of the evidence of record dated prior to November 14, 2006 documents the fact that there was no formal or informal claim of entitlement to service connection for a right ankle disability which was received prior to that date. The Board's review further documents that there is no competent evidence linking traumatic arthritis of the right ankle to any service-connected disability which is dated prior to November 14, 2006. The Veteran's representative has not argued such a fact pattern other than that addressed above which has been found to be without merit. In the current fact pattern with regard to original claims, the effective date to be assigned is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. With regard to the traumatic arthritis of the right ankle claim, the Board finds the date entitlement arose and the date of receipt of the claim are the same - November 14, 2006, the date of the VA examination which linked traumatic arthritis of the right ankle to the service-connected foot and ankle disabilities. Entitlement to an effective date prior to June 5, 2006 for the grant of service connection for right shoulder acromioclavicular joint arthritis In March 2003, the Veteran submitted a claim of entitlement to service connection for damage to his right shoulder. In September 2003, the RO denied service connection for a right shoulder disability. The Veteran was informed of the decision the same month. In October 2003, the Veteran reported that he was withdrawing the claim of entitlement to service connection for his right shoulder condition. The Veteran did not appeal the denial of service connection for a right shoulder condition and the September 2003 rating decision denying service connection for the right shoulder condition is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. It is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). In September 2004, Dr. R.D.N. wrote that he knew the Veteran had gait instability and coordination problems as well as complaints of frequent falling spells attributed to foot pain and left ankle pain and limited motion. The physician wrote that the Veteran has chronic pain in the right shoulder. The physician also noted that the Veteran's right shoulder pain-probable tendonitis "can be attributed to his proclivity to fall, with repeated strain on the shoulder." On October 20, 2004, VA received the Veteran's statement indicating that he was claiming service connection, in pertinent part, for a right shoulder condition. In July 2008, the RO granted service connection for right shoulder acromioclavicular joint arthritis and assigned a 10 percent evaluation effective from June 5, 2006. The Board finds that an earlier effective date of October 20, 2004 is warranted for the grant of service connection for the right shoulder disability. In September 2004, Dr. R.D.N. linked a currently existing right shoulder disability to falls the Veteran reportedly experienced as a result of his service- connected foot and ankle disabilities. This is the date entitlement arose. On October 20, 2004, the Veteran's claim of entitlement to service connection for a right shoulder disability was received. This is the date of receipt of claim. The statute provides that, in the current fact pattern with regard to reopening claims, the effective date to be assigned is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. No formal or informal claim of entitlement to service connection for a right should condition was received subsequent to the October 2003 communication from the Veteran withdrawing the claims of entitlement to service connection for his right shoulder and low back but prior to the October 20, 2004 communication from the Veteran claiming service connection for a right shoulder condition. Entitlement to an effective date prior to June 5, 2006 for the grant of service connection for lumbar spine disc bulge at L3-L4. In March 2003, the Veteran submitted a claim of entitlement to service connection for injury to his vertebra. In September 2003, the RO denied service connection for a back disability. The Veteran was informed of the decision the same month. In October 2003, the Veteran reported that he was withdrawing the claim of entitlement to service connection for his low back. The Veteran did not appeal the denial of service connection for a low back condition and the September 2003 rating decision denying service connection for the low back condition is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.1103. It is not subject to revision in the absence CUE in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). On October 20, 2004, VA received the Veteran's statement indicating that he was claiming service connection, in pertinent part, for a back condition. In July 2008, the RO granted service connection for lumbar spine disc bulge at L3-L4 level and assigned a 10 percent evaluation effective from June 5, 2006. The Board finds that an earlier effective date is not warranted for the grant of service connection for the Veteran's lumbar spine disability. On October 20, 2004, the Veteran submitted a claim of entitlement to service connection for a back condition. Significantly, it was not until after June 5, 2006, that medical evidence is created which linked the back disability to falls attributed to the Veteran's service-connected foot and ankle disabilities. In August 2004, the Veteran was informed by a clinician that a letter would be written by Dr. Dr. R.D.N. indicating he was "disabled due to frequent falls and back pain." This does not link the falls and back pain. The physician's subsequent letter did not link a back problem to the Veteran experiencing any falls. Testing conducted in October 2004 was interpreted as being consistent with mild L5 radiculopathy. This symptomatology was not linked to the Veteran's active duty service in any way. The first competent evidence of record which links a currently existing lumbar spine disability to the Veteran's alleged falls is the report of a June 2008 VA examination. The examiner opined that the Veteran's bulging disc in the lumbar spine was at least as likely as not due to a fall as a result of the service-connected right ankle disability. The RO, in granting service connection for the low back disability in July 2008, incorrectly referenced the June VA examination as occurring in June 2006. No VA examination was conducted on that date. This was the incorrect basis for the grant of the June 5, 2006, effective date for service connection for the lumbar spine. The Board finds that the date of receipt of the reopened claim of entitlement to service connection for a low back disorder is October 20, 2004. The date entitlement arose for the low back disability is subsequent to the June 5, 2006 date assigned. The Board finds that there is no evidence of record which would allow for the grant of an effective date prior to June 5, 2006 for the grant of service connection for the lumbar spine disorder. The statute provides that, in the current fact pattern with regard to reopening a claim, the effective date to be assigned is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In this case, date of entitlement is subsequent to date of receipt of claim. ORDER Entitlement to an effective date prior to November 14, 2006 for the grant of service connection for right ankle traumatic arthritis is not warranted. The appeal is denied. Entitlement to an effective date of October 20, 2004 for the grant of service connection for right shoulder acromioclavicular joint arthritis is granted subject to the laws and regulations governing monetary awards. Entitlement to an effective date prior to June 5, 2006 for the grant of service connection for lumbar spine disc bulge at L3-L4 is not warranted. The appeal is denied. REMAND The Veteran submitted a statement in support of claim and a copy of an examination for housebound status or permanent need for regular aid and attendance in May 2010. This evidence indicates a significant increase in symptomatology since the time of the last VA examinations for compensation and pension purposes which were conducted in June 2008 or prior. The evidence also indicates a significant increase in symptomatology when compared to VA clinical records dated in 2008 and 2009. For example, the May 2010 report indicates that the Veteran needed assistance in bathing and other hygiene needs. However, the clinical records dated in 2008 and 2009 do not reflect this level of impairment. The records include numerous references to the Veteran attending to his hygiene. The May 2010 report indicates the Veteran has been found to have gait problems and to be unsteady. Again the clinical records from 2008 and 2009 do not support this allegation. There are numerous references to the fact that the Veteran was steady. There are far fewer references to the Veteran being unsteady on his feet. It was written in the 2010 report that poor balance limited the Veteran's ability to travel outside the home and that the Veteran only left home approximately once per month. The 2008 and 2009 clinical records document that the Veteran frequently left his house for medical appointments and also for social activities. This frequency of leaving the house was significantly more than once per month. The Veteran was also able to travel somewhat in 2008 and 2009. In an accompanying statement, the Veteran reported that his service-connected disabilities caused falls on almost a daily basis. The clinical records from 2008 and 2009 do not reference such a level of impairment. In fact, the records seem to indicate that the Veteran is more steady on his feet. For example, there are several references to the Veteran wanting to be a mixed martial arts or cage fighter. There are also numerous references to the Veteran being involved in fights. The Board finds that, if the Veteran was as unsteady on his feet as he had previously reported, he would not be involved in or considering such activity. Another example would be a clinical record which references the fact that the Veteran reported he had been in a "mosh pit" which is very strenuous and could not be accomplished by someone who was unsteady on his feet. There is a reference to the Veteran using his cane intermittently. If the falls were frequent as previously reported, it is not apparent to the Board why the Veteran would only require the intermittent use of a cane. The large discrepancy between the Veteran's reported symptomatology in 2010 when compared with the prior years, the length of time since the last VA examination in 2006, and the lack of any clinical records from 2010 demonstrates to the Board that a remand is required to get a current VA examination, based on a review of all the evidence of record, which will document the current extent and severity of the Veteran's service- connected disabilities. In a March 2010 statement, the Veteran took exception with several statements included in a compensation and pension examination report which was conducted on January 30, 2010. It appears that an orthopedic examination was performed. The results of this examination, however, have not been associated with the claims file. Furthermore, it does not appear that the RO has had a chance to review this evidence. A remand is required to obtain the report of the January 2010 VA examination for association with the claims file and for review by the RO. The joint motion for remand referenced in the introduction indicated that fault was found with the Board's August 2007 decision which denied an increased rating for his service- connected left ankle. The joint motion noted that the Board found that there was no evidence of the presence of ankylosis but failed to discuss a 2006 VA examination finding that the left ankle had open reduction and internal fixation. The joint motion found that fixation and ankylosis were similar. The Board finds that resolution of the claim under the directions of the joint remand requires a medical opinion as to whether the Veteran's internal fixation is the equivalent of ankylosis. The Veteran has claimed entitlement to service connection for a right elbow disorder secondary to falls he allegedly experienced due to his service-connected foot and ankle disabilities. A VA examination was conducted in September 2008. The examiner diagnosed the presence of degenerative joint disease of the right elbow. The examiner opined that the degenerative joint disease of the right elbow was not caused by the service-connected right foot and left ankle conditions. The examiner also opined that the right elbow degenerative joint disease was not permanently worsened by the right foot and left ankle disabilities. The rationale for the opinion was that the range of motion of the elbow was normal at the time of the examination and no clinical abnormalities were noted. This rationale does not correspond with the physical findings. The examiner did not account for the presence of degenerative joint disease. The Board finds the examiner who conducted the September 2008 VA examination should be contacted and requested to provide an addendum to the examination report which addresses the etiology of the degenerative joint disease of the right elbow. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for right foot, right ankle, left ankle, right elbow, right shoulder and lumbar spine disorders. After securing any necessary releases, obtain those records which have not already been associated with the claims file. Regardless of the Veteran's response, obtain all outstanding VA medical records. The Board is particularly interested in obtaining the report of a VA examination which reportedly was conducted on January 30, 2010. 2. Contact the examiner who conducted the September 2008 VA examination and request that he prepare an addendum to the examination report which addresses the following: Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the degenerative joint disease of the right elbow noted at the time of the examination was etiologically linked to the Veteran's active duty service or to a service-connected disability or disabilities to include the Veteran's allegations of falls as a result of his service-connected foot and ankle disabilities. If the examiner determines that he cannot provide the requested opinion without another physical examination of the Veteran, this should be scheduled. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A detailed rationale, including pertinent findings from the record, should be provided for all opinion(s) provided. If any opinion cannot be provided without resort to speculation, the examiner should so state and indicate why such an opinion would require speculation. If the examiner who conducted the September 2008 VA examination is not available, make arrangements to have the Veteran examined by a suitably qualified health care professional. The claims file, to include a copy of this remand, must be made available to the examiner prior to completion of the examination report for review of pertinent documents therein. After reviewing the record, the VA examiner should answer the following: Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran currently experiences a right elbow disorder which is etiologically linked to the Veteran's active duty service or to a service-connected disability or disabilities to include the Veteran's allegations of falls as a result of his service-connected foot and ankle disabilities. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A detailed rationale, including pertinent findings from the record, should be provided for all opinion(s) provided. If any opinion cannot be provided without resort to speculation, the examiner should so state and indicate why such an opinion would require speculation. 3. Schedule the Veteran for an examination by an appropriately qualified health care professional or professionals to determine the current extent and severity of the service-connected right foot, left ankle, right ankle, right shoulder and lumbar spine disabilities. The claims file, to include a copy of this remand, must be made available to the examiner prior to completion of the examination report for review of pertinent documents therein. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The examination must include range of motion studies. With regard to range of motion testing for all the pertinent joints, the examiner should report at what point (if any, in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. With regard to the back claim, in addition to range of motion testing, the examiner should report any specific information as to the frequency and duration of any incapacitating episodes, and a description of all neurologic manifestations (e.g., radiating pain into an extremity) due to the service-connected low back disability. The examiner should also specifically state if ankylosis and muscle spasm are present. With regard to the left ankle claim, in addition to range of motion testing set out above, the examiner must provide an opinion as to whether the "fixation" of the Veteran's left ankle noted in the medical records is the functional equivalent of ankylosis of the left ankle. The examiner must report whether ankylosis or the equivalent is present. With regard to the right foot claim, in addition to the range of motion testing set out above, the examiner should opine as to whether the symptomatology associated with the service-connected disability more nearly approximates a moderate foot injury, a moderately severe foot injury or a severe foot injury. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. When the development requested has been completed to the extent possible, the case should be reviewed by the RO on the basis of additional evidence. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant and his representative have 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs