Citation Nr: 1033034 Decision Date: 09/02/10 Archive Date: 09/13/10 DOCKET NO. 06-39 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to a compensable initial disability rating for residuals of right ankle strain for the period prior to April 23, 2008. 2. Entitlement to a disability rating in excess of 10 percent for residuals of right ankle strain for the period from April 23, 2008. 3. Entitlement to service connection for status post laminectomy L4-5 and L5-S1 with degenerative joint disease. 4. Entitlement to service connection for osteoarthritis of the left knee. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran had active service from May 1981 to November 1993 and from May 2003 to September 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2006, a statement of the case was issued in October 2006, and a substantive appeal was received in December 2006. The Board notes that the Veteran's appeal originally included additional issues that were addressed in the October 2006 statement of the case. However, the Veteran's December 2006 substantive appeal expressly limited his appeal to the issues addressed in this Board decision and listed above. The issues of entitlement to service connection for status post laminectomy L4-5 and L5-S1 with degenerative joint disease, and for osteoarthritis of the left knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. For the period prior to April 23, 2008, the Veteran's residuals of right ankle strain were not manifested by moderate limitation of motion of the ankle. 2. For the period from April 23, 2008, the Veteran's residuals of right ankle strain have not been manifested by marked limitation of motion of the ankle. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for the Veteran's residuals of right ankle strain have not been met for the period prior to April 23, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2009). 2. The criteria for a disability rating in excess of 10 percent for the Veteran's residuals of right ankle strain have not been met for the period from April 23, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, Part 4, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5271 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This legislation provides, among other things, for notice and assistance to claimants under certain circumstances. VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA. See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. Duty to Notify After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought in a letter dated in May 2004. Moreover, in this letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Board notes that this letter was sent to the appellant prior to the April 2005 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the May 2004 VCAA letter provided timely notice in association with the Veteran's original claim of entitlement to service connection for residuals of right ankle strain. Since the issue in this case of entitlement to an increased initial disability rating for service-connected residuals of right ankle strain is a downstream issue from that of service connection, additional VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (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 upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded. Id. at 488. In this case, an effectively timely letter sent in March 2006 provided the notice contemplated by Dingess. The appellant was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates. The Board notes that this letter was sent to the appellant prior to the most recent RO-level readjudication of the issues on appeal as evidenced by the May 2010 supplemental statement of the case. The notice was therefore effectively timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that -except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim- the burden of proving harmful error must rest with the party raising the issue; the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Duty to Assist Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record as it stands includes sufficient competent evidence. All available pertinent records, in-service, private, and VA reports, have been obtained. The Veteran has been afforded multiple VA examinations to evaluate his disability in this appeal; all pertinent VA examination reports are of record, including those dated in January 2005 and February 2010. The Board finds that the VA examination reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to allow for fully informed application of the appropriate rating criteria in this case. The VA examination reports of record provide probative medical evidence adequately addressing the issues decided below. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Analysis The Veteran seeks assignment of a compensable initial disability rating for his service-connected residuals of right ankle strain for the period prior to April 2008. He also seeks a disability rating in excess of 10 percent for his service-connected residuals of right ankle strain for the period from April 2008. The Veteran essentially contends that the disability has been more severely disabling than the assigned disability ratings reflect. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In either event, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Board also notes, that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran's service-connected right ankle disability has been rated by the RO under the provisions of Diagnostic Code 5271 for limitation of motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this regulatory provision, moderate limitation of motion of the ankle warrants a 10 percent disability rating. Marked limitation of motion of the ankle warrants a 20 percent disability rating. The normal range of motion for an ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. The terms 'mild,' 'slight,' 'moderate,' and 'severe,' are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. A January 2005 VA examination report shows that the Veteran's right ankle had no swelling or redness and there was no pain to deep palpation. Dorsiflexion was to 30 degrees with no pain or discomfort. Plantar flexion was to 45 degrees with no pain or discomfort. There was no pain to manipulation of the ankle. During repetitive use, the examiner found no function limitation and the Veteran had good peripheral pulses. The claims file documents that the Veteran attended an informal personal hearing at the RO on April 23, 2008, and reported that the severity of his right ankle disability had increased in severity in the time since his January 2005 VA examination. Subsequently, the Veteran was afforded a new VA examination in February 2010, and by rating decision in April 2008, a new disability rating of 10 percent was assigned for the right ankle disability effective from the date of the Veteran's indication of worsened symptoms (April 23, 2008). The Board has considered whether the evidence supports a finding that the criteria for a 10 percent disability rating were met at any time during the period prior to April 2008, but the Board finds that no such increased rating is warranted. To warrant a compensable disability rating under diagnostic code 5271, there must be a showing of moderate limitation of motion in the ankle, but neither the January 2005 VA examination report nor any other evidence shows such limitation for the period prior to April 2008. The February 2010 VA examination report shows that the Veteran reported giving way, instability, pain, stiffness, weakness, decreased speed, and swelling in the joint of moderate severity every one to two months for duration one to two days. The Veteran's impression of the extent of effects from flares on loss of motion or other function impairment was that there was moderate functional impairment. The Veteran denied incoordination, locking, effusions, or deformity. The Veteran described being able to walk more than a quarter of a mile but less than one mile. Physical examination of the right ankle at the February 2010 VA examination revealed normal gait, no evidence of abnormal weight bearing, no loss of bone or part of bone, and no inflammatory arthritis. The examiner found no abnormal findings for the right ankle other than moderate internal rotation instability with increased valgus angulation but no tendon abnormality. Range of motion testing revealed objective evidence of pain with active motion in the right ankle; dorsiflexion was from 0 to 10 degrees and plantar flexion was from 0 to 45 degrees. There was no objective evidence of pain following repetitive motion and there was no additional limitation after three repetitions of range of motion testing. The examiner diagnosed recurrent right ankle sprain with instability secondary to tibial fibular injury. The examiner noted that the Veteran is employed full time and has missed no time from work due to the right ankle disability during the prior year. The Board acknowledges the indications of pain in the Veteran's right ankle. To receive a disability rating in excess of the currently assigned 10 percent for the period from April 2008 under Diagnostic Code 5271, the evidence must show marked limitation of motion of the ankle. The Veteran's range of right ankle motion in February 2010 was 10 degrees dorsiflexion and 45 degrees plantar flexion. The normal range of motion for an ankle is 20 degrees dorsiflexion and 45 degrees plantar flexion. 38 C.F.R. § 4.71a, Plate II. As such, the Veteran's dorsiflexion was limited by 10 degrees and his plantar flexion was normal. The Board acknowledges the requirements of DeLuca v. Brown, 8 Vet. App. 202 (1995), to consider any additional functional loss due to pain. The examiner, however, directly noted the Veteran's objective evidence of pain on active motion and found no additional limitation with repetitive motion beyond what is reflected in the reported findings. The remainder of the record fails to show any greater limitation of motion due to functional loss. Viewing these findings, the Board is unable to conclude that the right ankle disability more nearly approximates marked limitation of motion, even when DeLuca is considered. It appears that plantar flexion is essentially normal, and dorsiflexion is limited to one-half of normal. These findings are more suggestive of moderate limitation of motion. As such, the current 10 percent rating appears to fully contemplate the degree of disability under limitation of motion criteria. The Board must also consider other possibly applicable regulations with regard to both periods on appeal. Diagnostic Codes 5270 and 5272 are inapplicable because the evidence failed to show ankylosis of the ankle or of the subastragalar or tarsal joint. Diagnostic Code 5273 would not benefit the Veteran because the evidence does not show any deformity. Diagnostic Code 5274 is inapplicable as the Veteran has not had an astragalectomy. As such, no other diagnostic code is applicable to the Veteran's ankle disability. As such, the Board finds that a preponderance of the evidence is against the claim of entitlement to an increased disability rating for the service connected residuals of right ankle strain. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Conclusion and Extraschedular Consideration In this decision, the Board has found that the VA examination reports of record are highly probative evidence with regard to evaluating the severity of the Veteran's right ankle disability on appeal in this case. The reports specifically document and address the Veteran's symptom complaints, document the pertinent specialized clinical findings, and present competent medical examiners' assessments of the disability informed by direct interview and inspection of the Veteran together with consideration of the pertinent history. The Board has reviewed the entirety of the evidence of record, including the Veteran's testimony and additional treatment records. The Board finds that none of the evidence of record probatively contradicts the findings discussed above, nor does any of the evidence of record otherwise probatively show that the criteria for any increased rating are met in this case. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severely disabling than the assigned disability ratings reflect. Medical evidence is generally required to probatively address questions requiring medical expertise; lay assertions do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board has carefully considered the Veteran's contentions and testimony. Lay testimony is competent to describe such complaints as the pain associated with the Veteran's ankle disability; the Veteran's competent testimony regarding pain has been considered and is contemplated by the disability ratings currently assigned. In this case, the competent medical evidence offering detailed specific findings and specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. The Board accepts the Veteran's testimony regarding his ankle, but relies upon the competent medical evidence with regard to the specialized quantification and evaluation of the extent of functional limitation and details of clinical features. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The preponderance of the most probative evidence does not support assignment of any increased rating in this case. Finally, in making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence with regard to any adverse determination in this decision. The preponderance of the evidence is against finding entitlement to any increased rating in this appeal. To that extent, as the preponderance of the evidence is against the claim, the benefit-of-the- doubt doctrine does not apply and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). The Board also recognizes that the Veteran and the record refer to the impact of the service-connected disability on the Veteran's functioning, to include work functioning. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant Diagnostic Codes for the disability at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted. Additionally, the Court recently held that a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. The Board has considered whether the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is currently sought in this appeal. In the present case, the Board finds no such question is raised. The Veteran has not contended that he is unemployable due to the service-connected ankle disability on appeal; the Veteran's February 2010 VA examination report clearly documents that the Veteran described being employed full time, having lost no time from work due to right ankle disability in the past year, and experiencing no significant effects from the right ankle disability upon his usual occupation as an engineer. The Board finds that neither the evidence nor the contentions of record otherwise raise the question of whether the Veteran is unemployable due to a disability on appeal. Therefore, the Board finds that this appeal does not include an issue of entitlement to TDIU. ORDER An initial compensable disability rating is not warranted for the Veteran's service connected residuals of right ankle strain for the period prior to April 2008. To this extent, the appeal is denied. A disability rating in excess of 10 percent for the Veteran's service connected residuals of right ankle strain is not warranted for the period from April 2008. To these extents, the appeal is denied. REMAND The Board finds that additional development is necessary to permit informed appellate review of the issues of entitlement to service connection for status post laminectomy L4-5 and L5-S1 with degenerative joint disease, and for osteoarthritis of the left knee. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In this case, the Veteran had two separate periods of active duty service. There is contemporaneous documentation of the Veteran experiencing potentially pertinent symptomatology of pain in his back and left knee during his first period of military service, including in October 1985 (back injury with severe muscle soreness), January 1993 (left knee crepitus noted), and July 1993 (persisting left knee pain). There is no suggestion that the Veteran had a chronic back or left knee disability pre-existing this first period of service. There is evidence indicating that the Veteran underwent surgeries involving his back and his left knee after his first period of active duty service, but before his second period of active duty service. There is also evidence of the Veteran experiencing back pain and left knee swelling during his second period of active duty service. The record raises the possibility that the Veteran's chronic back and/or left knee disabilities were first incurred during active duty service, and the record raises the alternative possibility that chronic back and/or left knee disabilities were aggravated during the Veteran's second period of active duty service. There has been no VA examination with etiology opinion addressing the significant complex medical questions raised by these issues. Although the January 2005 VA examination report includes current findings and diagnoses of chronic back and left knee disabilities, the January 2005 VA examination report does not present any opinion or discussion addressing the etiology of these disabilities. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that recent case law has held that 38 C.F.R. § 3.159(c)(4)(C) establishes a low threshold for satisfying the requirements to trigger the Secretary's duty to assist by providing a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006). In this case, the Board finds that the evidence of record contains competent evidence of current chronic disabilities of the back and of the left knee, evidence that may suggest manifestations of these disabilities during the Veteran's military service, and a reasonable indication that the current disabilities may be associated with certain symptoms during service. It appears that there has been no VA examination conducted to specifically address the etiology of the Veteran's current chronic disabilities of the back and of the left knee. There is otherwise insufficient competent medical evidence on file to permit informed appellate review of the critical medical questions in this case at this time. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of any current back and left knee disabilities. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: a) Please identify the nature of any current back disability diagnosed in this Veteran. b) For each identified back disability diagnosed in responding to the above, please clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the back disability was manifested during military service, otherwise caused by the Veteran's service, or otherwise aggravated by the Veteran's military service. In answering this question, please discuss any relevant service and post-service treatment records. In particular, please address any service treatment records showing potentially pertinent in-service symptom complaints (such as in October 1985 and 2003). If the examiner determines that no chronic back disability was present or caused during the Veteran's first period of active duty service, the examiner is asked to please specifically address whether any chronic back disability was permanently aggravated beyond its natural course by the Veteran's second period of active duty service. c) Please identify the nature of any current left knee disability diagnosed in this Veteran. d) For each identified left knee disability diagnosed in responding to the above, please clearly state whether it is at least as likely as not (a 50% or higher degree of probability) that the left knee disability was manifested during military service, otherwise caused by the Veteran's service, or otherwise aggravated by the Veteran's military service. In answering this question, please discuss any relevant service and post-service treatment records. In particular, please address any service treatment records showing potentially pertinent in-service symptom complaints (such as in January and July 1993, and in 2003). If the examiner determines that no chronic left knee disability was present or caused during the Veteran's first period of active duty service, the examiner is asked to please specifically address whether any chronic left knee disability was permanently aggravated beyond its natural course by the Veteran's second period of active duty service. 2. After completion of the above and any other development which the RO may deem necessary, the RO should review the claims file and undertake a merits analysis to determine if the Veteran's claims can be granted. If any claim on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs