Citation Nr: 1034419 Decision Date: 09/13/10 Archive Date: 09/21/10 DOCKET NO. 06-05 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a left arm disability, to include as secondary to a service-connected left knee disability. 2. Entitlement to service connection for a left leg disability, to include as secondary to a service-connected left knee disability. 3. Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected left knee disability. 4. Entitlement to service connection for a lower back disability, to include as secondary to a service-connected left knee disability. 5. Entitlement to service connection for a left hand disability, to include as secondary to a service-connected left knee disability. 6. Entitlement to service connection for a left wrist disability, to include as secondary to a service-connected left knee disability. 7. Entitlement to service connection for a left elbow disability, to include as secondary to a service-connected left knee disability 8. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected left knee disability. 9. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder, and organic brain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1952 to July 1956. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO denied the Veteran's petition to reopen the previously denied claim for service connection for a lower back disability as new and material evidence had not been submitted and denied entitlement to service connection for left hand, arm, wrist, leg, shoulder, elbow, and ankle disabilities, and a nervous disability. The Veteran testified before the undersigned at an August 2008 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In August 2008, the Board granted the Veteran's petition to reopen the claim for service connection for a lower back disability and remanded that claim and all other matters on appeal for further development. In its August 2008 decision and remand, the Board listed several of the issues on appeal as being entitlement to service connection for arthritis of the hands, arms, legs, shoulders, elbows, and ankles. The agency of original jurisdiction has listed the issues variously as involving unspecified hands, arms, legs, shoulders, and elbows. However, the Veteran's December 2004 claim (VA Form 21-4138) and the rating sheet accompanying the March 2005 rating decision reveal that his claim and the RO's decision only involved the left side of his body (i.e. left arm, leg, shoulder, hand, wrist, elbow, and ankle). Therefore, the issues on appeal have been re-characterized as listed above. Although the Veteran's initial October 2004 claim for service connection was characterized as for "nerves", the United States Court of Appeals for Veterans Claims (Court) has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue as a claim for entitlement to service connection for a psychiatric disability, to include PTSD, major depressive disorder, generalized anxiety disorder, and organic brain syndrome. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2009) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The issue of entitlement to a TDIU has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In August 2010, the Board granted the Veteran's motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a lower back, left hand, wrist, elbow, and ankle disabilities 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. The Veteran does not have a current left arm disability. 2. The Veteran does not have a current left leg disability. 3. The Veteran does not have a current left shoulder disability. 4. The Veteran's current psychiatric disability is the result of an in-service disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for a left arm disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. The criteria for service connection for a left leg disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for a psychiatric disability are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to 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). As the Board is granting the claim for service connection for a psychiatric disability, the claim is substantiated, and there are no further VCAA duties as to that issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the claims for service connection for left arm, leg, and shoulder disabilities, under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in December 2004, the RO notified the Veteran of the evidence needed to substantiate his claims for service connection for left arm, leg, and shoulder disabilities on a direct incurrence basis. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the December 2004 letter complied with this requirement. The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claims, in a June 2009 letter. The timing deficiency with regard to this letter was cured by readjudication of the claims in a June 2010 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran did not receive any pre-adjudication notice of the evidence needed to substantiate his service connection claims on a secondary basis. However, he was notified of this information in a February 2006 statement of the case. Such a post-decisional document could not serve to provide legally compliant VCAA notice. Mayfield v. Nicholson, 444 F.4d 1328 (2006). It should, however, have served to put the Veteran on notice as to what evidence was required and he had years during which to submit additional evidence and argument. To the extent that the Veteran was not provided with pre- adjudication notice of some of the information required by the VCAA for his service connection claims, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication. Id. See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In this case, the Board is denying the claims for service connection for left arm, leg, and shoulder disabilities because there is no evidence that the Veteran has been diagnosed as having current arm, leg, and shoulder disabilities, and the denials are not based on a lack of a relationship between a current disability and a service-connected disability. Therefore, no showing of prejudice has been made here. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records and private medical records. In addition, he was afforded a VA examination for left leg and shoulder disabilities. A November 2007 VA orthopedic surgery consultation note reveals that the Veteran reported that he was retired and "on disability." Also, a July 2009 psychiatric examination report from Dr. Dar indicates that the Veteran reported that he was receiving Social Security Administration (SSA) disability benefits for an unspecified disability. However, at the time of the November 2007 VA orthopedic surgery consultation and the July 2009 psychiatric examination, the Veteran was 73 and 75 years old, respectively. Therefore, any SSA benefits that he would have been receiving were "old age" benefits and not disability benefits. 42 U.S.C.A. § 402 (West 2002). Any such records are not relevant to the Veteran's service connection claims and need not be obtained. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran was not afforded a VA examination for a left arm disability. As discussed below, there is no evidence that the Veteran has been diagnosed as having a current left arm disability and no evidence of any left arm symptoms that may be related to a disease or injury in service. A VA examination is therefore not necessary. See McLendon, 20 Vet. App. at 83. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). Because service connection for left arm, leg, and shoulder disabilities is being denied because there is no evidence of current disabilities, it is not necessary to determine which version of the regulation is applicable. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Arm, Leg, and Shoulder Disabilities In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997). To be present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, there is no medical evidence of current left arm, leg, or shoulder disabilities. A January 2009 VA examination report reveals that the Veteran denied shoulder pain or any other shoulder problems and that he did not report any left leg symptoms. X-rays revealed that the tibia and fibula were normal and he was not diagnosed as having any left shoulder or left leg disabilities. Furthermore, there is no evidence of any diagnosed left arm disability or symptoms of any such disability and neither the Veteran nor his representative have alluded to the existence of any such evidence. There is evidence of left leg weakness, bruising, and swelling, however these findings were reported in connection with treatment for the already service connected left knee disability. An additional disability of the left leg has never been identified. Furthermore, although the Veteran has reported left leg and shoulder pain on several occasions, pain without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet App 282 (1999); aff'd sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). There is no other evidence of current left arm, leg, or shoulder disabilities. Therefore, current disabilities have not been demonstrated. McClain, 21 Vet. App. at 321. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claims. The benefit-of-the-doubt doctrine is therefore not applicable and the claims for service connection for left arm, leg, and shoulder disabilities must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. Psychiatric Disability The Veteran's medical records indicate that he has been diagnosed as having various psychiatric disabilities. For example, a December 2008 VA examination report indicated a diagnosis of major depressive disorder. Furthermore, he has reported on several occasions, including during the December 2008 VA examination, that he participated in the off-shore bombardment of the Korean coast while stationed aboard the USS Wren during the Korean War in 1953. He has also reported on several occasions that he was responsible for passing gun powder up to the gun mounts while stationed aboard the ship, and that during that time he witnessed the crash of a damaged plane into the ship and was told to "cut the throat" of any enemy he encountered. The Veteran's service personnel records reveal that he served aboard the USS Wren from March 1953 to June 1956 and that he served in the Korean Combat Zone from October to December 1953 and January to February 1954. The Veteran is competent to report in-service stressors, including participation in combat, and his reports are consistent with the circumstances of his service. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Therefore, the Veteran's in-service psychiatric stressors are conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). Thus, there is evidence of current psychiatric disabilities and in- service stressors. As for the etiology of the Veteran's psychiatric disability, the December 2008 VA examination report includes an opinion that the Veteran's currently diagnosed major depressive disorder was likely ("as least as likely as not") caused by or a result of his active service. This opinion was based on the Veteran's report of an in-service traumatic event (i.e. bombarding the Korean coast) and the fact that he manifested minimal to mild symptoms of posttraumatic stress upon assessment. The psychologist who conducted the December 2008 VA examination further explained that reactions to traumatic experiences frequently included depressive and anxiety symptoms and that such reactions may have a delayed onset, as was the case with the Veteran. He most likely initially experienced an adjustment disorder with mixed anxiety and depression associated with the trauma that he experienced during his service in Korea. Over time, his psychiatric symptoms had become primarily depressive in nature, and resulted in the currently diagnosed major depressive disorder. As the December 2008 opinion is accompanied by a rationale, was based upon a review of the Veteran's claims file and his reported history, and is consistent with the evidence of record, it is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The only medical opinion as to the etiology of the Veteran's currently diagnosed major depressive disorder is that it is related to service. As the weight of the evidence indicates that the Veteran's psychiatric disability is related to his in-service stressors and resolving reasonable doubt in his favor, service connection is granted. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. The Board notes that the Veteran has claimed service connection for PTSD and that he has been diagnosed as having PTSD based upon claimed in service stressors. As discussed above, however, the Veteran's claim encompasses all of his diagnosed psychiatric disabilities. See Clemons, 23 Vet. App. at 1. In light of the fact that the Board is granting service connection for a psychiatric disability and both diagnosed conditions are rated according to the General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, Diagnostic Codes 9201-9440), a separate discussion as to the Veteran's PTSD is unnecessary. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2009); see also Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (regarding whether separate ratings would ever be warranted for variously diagnosed psychiatric disabilities). ORDER Entitlement to service connection for a left arm disability is denied. Entitlement to service connection for a left leg disability is denied. Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a psychiatric disability is granted. REMAND The January 2009 VA examination report reveals that the Veteran has been diagnosed as having degenerative disk disease of the lumbosacral spine with disk space narrowing at L5-S1 and degenerative joint disease of the left hand, wrist, elbow, and ankle. Therefore, current lower back and left hand, wrist, elbow, and ankle disabilities have been demonstrated. During the August 2008 hearing, the Veteran testified that he began to have back problems in service while lifting powder and that he had experienced back problems ever since service. He also testified that he experienced frostbite in is hands while in service. In its August 2008 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to determine the etiology of any back disability and any multiple joint arthritis if evidence was received which suggested a link between such disabilities and a service-connected disability or a disease or injury in service. The examiner was instructed to opine as to whether any such disabilities had their onset in service or whether a relationship existed between any such disabilities and service or the Veteran's service-connected left knee disability. The Veteran was afforded a VA examination in January 2009 and was diagnosed as having degenerative disk disease of the lumbosacral spine with disk space narrowing at L5-S1 and degenerative joint disease of the left hand, wrist, elbow, and ankle. The physician who conducted the examination opined that the currently diagnosed lower back, left hand, wrist, elbow, and ankle disabilities were not caused by the Veteran's service-connected traumatic arthritis of the left knee. This opinion was based on the fact that there was no documented injury or disability of the lower back, left ankle, elbow, wrist, or hand in service. The Veteran's erythrocyte sedimentation rate was high, which was indicative of generalized osteoarthritis that was not due to left knee traumatic arthritis. Overall, he had generalized osteoarthritis of the lower back, left hand, wrist, elbow, and ankle which was more likely due to degeneration from aging. The January 2009 VA examination is inadequate because the examiner only provided an opinion as to whether a relationship existed between the Veteran's lower back, left hand, wrist, elbow, and ankle disabilities and his service-connected left knee disability. While the examiner's rationale seems to allude to whether a relationship existed between the currently diagnosed disabilities and service, no explicit opinion was provided as to whether such disabilities had their onset in service or were related to a disease or injury in service. To the extent that an opinion was provided as to whether a relationship existed between the currently diagnosed disabilities and the Veteran's service-connected left knee disability, the opinion was limited to whether the lower back, left hand, wrist, elbow, and ankle disabilities were "caused" by the service- connected left knee disability. However, service connection may also be granted for a disability that is "aggravated" by a service-connected disability and no opinion has been provided as to any possible aggravation. 38 C.F.R. § 3.310. The January 2009 VA examination is also inadequate because the examiner did not consider the Veteran's report of frostbite of his hands in service or his report of back problems in service and in the years since service. Rather, the examiner's opinion was based on the absence of any evidence of treatment for lower back, left hand, wrist, elbow, or ankle symptoms in the Veteran's service treatment records. The Veteran is competent to report in service back and hand injuries and his history of back symptoms. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2009); see 38 C.F.R. § 19.9 (2009). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Furthermore, the Veteran has not been provided specific notice of the information and evidence that is necessary to substantiate a claim for service connection on a secondary basis in accordance with the VCAA. Therefore, such notice should be provided upon remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Send the Veteran a VCAA notice letter that provides him with notice as to the information and evidence that is required to substantiate a claim for secondary service connection. 2. After any additional evidence has been submitted by the Veteran and associated with his claims folder, the claims folder should be forwarded to the examiner who provided the January 2009 VA examination. The examiner should review the claims folder and opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back disability had its onset in service or in the year immediately after service, is related to his in-service lower back condition, or is otherwise the result of a disease or injury in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left hand disability had its onset in service or in the year immediately after service, is related to in-service left hand frostbite, or is otherwise the result of a disease or injury in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current left wrist, elbow, and ankle disabilities had their onset in service or in the year immediately after service or are related to a disease or injury in service. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current lower back, left hand, wrist, elbow, and ankle disabilities were either caused or aggravated (made worse) by his service-connected left knee disability. The examiner should quantify the amount of any aggravation, if possible. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report in-service lower back and left hand injuries, his symptoms and history; and such reports must be considered in formulating any opinions. If the examiner who conducted the January 2009 VA examination is unavailable, the Veteran should be afforded a new VA examination to obtain the necessary opinions. 3. The AOJ should review the opinion/examination report to ensure that it contains the information requested in this remand and is otherwise complete. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs