Citation Nr: 1124535 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 07-29 661 ) 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 leg disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for impotence. 4. Entitlement to service connection for pes planus. 5. Entitlement to service connection for residuals of a left eye injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty (AD) in the U.S. Navy from August 1963 to September 1966. He also had additional service in the U.S. Army Reserves from April 1979 to December 2003. He submitted his Annual Points Statement listing the number of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) days he served per year, but not specifying the exact dates of any of those periods of training. This appeal to the Board of Veterans' Appeals (Board) is from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his June 2006 statement, the Veteran indicated that he mistakenly had filed a claim for a left eye disability when he had intended, instead, to file for a right eye disability. But as he already had filed a timely Notice of Disagreement (NOD) as to all issues adjudicated in the May 2006 rating decision, the denial of service connection for the left eye disability was included in the appeal. 38 C.F.R. § 20.201 (2010). Moreover, since his June 2006 letter did not explicitly withdraw the left eye claim, it remained on appeal. 38 C.F.R. § 20.204. The RO resultantly issued a Statement of the Case (SOC) in August 2007 regarding all five issues and, in response, the Veteran filed a timely Substantive Appeal (VA Form 9) in September 2007 concerning all issues listed in the SOC - to in turn complete the steps necessary to perfect his appeal to the Board of all claims. 38 C.F.R. § 20.200. The RO since has issued another rating decision in January 2008, however, also denying service connection for a right eye disability (the intended claim), and the Veteran did not file another NOD in response to that additional determination to initiate an appeal of this additional claim. Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). Therefore, only his left eye claim is before the Board. Because they require further development before being decided, the Board is remanding the claims for service connection for a right leg disorder, impotence, pes planus, and hypertension. The remand of these claims to the RO will be via the Appeals Management Center (AMC) in Washington, DC. However, the Board is going ahead and deciding the remaining claim for a left eye disability. FINDING OF FACT The weight of the competent and credible evidence indicates the Veteran had a scar above his left eye when beginning his AD service in August 1963, and that service and his additional service in the reserves on ACDUTRA and INACDUTRA did not make any associated pre-existing disability permanently worse. CONCLUSION OF LAW The Veteran sustained a left eye injury prior to service, and the resultant disability was not aggravated by his active military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the United States Supreme Court held that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower Federal Circuit's framework (see Sanders v. Nicholson, 487 F. 3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id., at 1704. The Supreme Court rejected the Federal Circuit's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party, to show the error was harmful. Id., at 1705-06. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id., at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the Veterans Court may conclude generally that a specific type of error is more likely to prejudice an appellant, the error nonetheless must be examined in the context of the facts of the particular case. Id. The Veterans Court held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), since overturned on other grounds in Vazquez-Flores v. Shinseki, 2009 WL 2835434 (Fed.Cir.), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F. 3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Veterans Court nonetheless determined the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). In this case, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in September 2005, March 2006, and September 2007. These letters informed him of the type of information and evidence required to substantiate his service-connection claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The more recent March 2006 and September 2007 letters also complied with Dingess by as well apprising him of the downstream disability rating and effective date elements of his claim. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO obtained his service treatment records (STRs) and VA evaluation and treatment records. There is no indication of any outstanding records pertaining to his claim for a left eye disability. The specific dates of his ACDUTRA and INACDUTRA service have not been verified, only the dates he earlier was on AD. However, this information is not determinative of his claim for service connection for a left eye disability since he is not alleging any specific injury or disease during this additional service as to require corroboration of his duty status on a particular date. The Board also finds that a VA examination is not needed to determine whether the Veteran's left eye disability is related to his military service, as the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service-connection claim 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 a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. Id., at 81. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Court indicated that, when determining whether a VA examination is required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. Here, the Veteran's STRs indicate he had a scar above his left eye when beginning his AD service in August 1963, although he had 20/20 vision in this eye so no associated visual impairment. This scar and 20/20 vision again were noted during his separation from AD. There is no suggestion this documented pre-existing scar was aggravated by either his AD service or later ACDUTRA or INACDUTRA. There is clear and unmistakable evidence of a pre-existing injury to this eye and absolutely no evidence of any change in its status during his service, let alone any evidence of an increase in the severity of this condition. The Board therefore finds that a medical nexus opinion is not required under these circumstances to fairly decide this claim. Accordingly, the Board finds that no further development of this claims is necessary. II. Service Connection for Residuals of a Left Eye Injury The Veteran may be awarded service connection by showing that he currently has a disability resulting from a disease or an injury incurred in or aggravated by his active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires (1) competent and credible evidence of a current disability; (2) competent and credible medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). For a showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established or is legitimately questionable, then evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay 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 (Fed. Cir. 2007). So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). VA's General Counsel has held that to rebut the presumption of sound condition when entering service under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service beyond its natural progression. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). See generally Cotant v. Principi, 17 Vet. App. 116 (2003). VA may show a lack of aggravation by establishing that either there was no increase in disability during service or that any increase in disability was due to the natural progression of the pre-existing condition. 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a),(d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131. To establish status as a "Veteran"" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's period of active duty in the Navy) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Certain presumptions that apply to periods of AD are inapplicable to periods of ACDUTRA and INACDUTRA, such as regarding the presumptive incurrence of conditions that are considered chronic, per se, if initially manifested to a compensable degree within the initial post-service year, or regarding aggravation. See Smith v. Shinseki, 24 Vet. App. 40 (2010). The Appellant in this case is a "Veteran" based on his AD service in the U.S. Navy from August 1963 to September 1966. Therefore, he is entitled to "Veteran" status and the full benefit of VA resources for any compensation claim based on this earlier period of service. But to the extent his claim, instead, is predicated on his additional service in the U.S. Army Reserves while on either ACDUTRA or INACDUTRA, he must establish that he also qualifies as a "Veteran" for this additional service before any compensation may be awarded. The Veteran's STRs, concerning his initial service on AD, show the presence of a scar above his left eye at the time of his enlistment into service in August 1963. If, as here, there was such a notation when entering service, he cannot bring a claim for service connection for the disability, but he may bring a claim for service-connected aggravation of the disability. In that case, however, 38 U.S.C.A. § 1153 applies and the burden falls on him, rather than VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). And independent medical evidence is generally needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Here, there is absolutely no evidence or suggestion of any increase in severity of the Veteran's left eye scar during his service, such that he now has greater associated disability. None of his STRs show any complaints of problems with this eye or the skin above it during his service. Indeed, there is no evidence of any change in the status of this pre-existing scar either at any time during his AD or even alternatively during his subsequent service on ACDUTRA and INACDUTRA. His STRs clearly show no increase in the severity of this scar, so the Board cannot concede aggravation of this scar. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). To try and establish this required aggravation, the Veteran alleges a decline in his visual acuity in this eye during his service. But, to the contrary, his STRs show 20/20 vision in this eye (so entirely normal vision) both at enlistment and separation, hence, no change during his AD service from 1963 to 1966, and there is no indication he required vision correction until 1987, so not until some 21 years later. This is probative evidence against the notion of any worsening of his visual acuity during or necessarily as a consequence of his military service, either while initially on AD or even subsequently, beginning in April 1979, while on ACDUTRA or INACDUTRA. See Struck v. Brown, 9 Vet. App. 145 (1996) (indicating cotemporaneous medical findings may be given more probative value that evidence or opinions offered many years later, long after the fact). See also Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (ruling that a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether an injury or a disease was incurred in service resulting in any chronic or persistent disability). The presumption of aggravation applies only when pre-service disability increases in severity during AD service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). This presumption does not, as mentioned, apply to ACDUTRA and INACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for the residuals of his left eye injury. And as the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). Accordingly, the appeal of this claim must be denied. ORDER The claim for service connection for the residuals of a left eye injury is denied. REMAND Medical nexus opinions are needed to assist in deciding the Veteran's remaining claims, which also concern his purported entitlement to service connection. These remaining claims must be further developed to consider all potential theories of entitlement, including aggravation of a pre-existing condition, direct incurrence of a disability in service, and any potential secondary relationship between these remaining conditions claimed and a service-connected disability. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004) (indicating that, when determining whether a claimant is entitled to service connection, all potential theories of entitlement must be considered). Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), 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 a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See also 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4). When determining whether a VA examination is required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Regarding his feet, the Veteran's STRs indicate he had second-degree bilateral pes planus (flat feet) when beginning his AD service in August 1963, so there is documentation of this pre-existing condition. And as already explained, if, as here, a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for the disability, but he may bring a claim for service-connected aggravation of the disability. But § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Generally speaking, a congenital defect is not service connectable as a matter of express VA regulation because it is not a disease or injury within the meaning of applicable legislation for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. The only possible exception is if there is evidence of additional disability due to aggravation during service of a congenital disease, but not defect, by superimposed disease or injury. VAOPGCPREC 82-90; Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. See also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In VAOPGCPREC 82-90, VA's General Counsel held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin, and indicated that support for this position could be found in VA regulations themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities The Veteran alleges that his pre-existing pes planus was aggravated by his service, especially by his October 1979 accident and right leg disability. Therefore, this claim is not just based on in-service aggravation but also depends on whether service connection is granted for this right leg disability to show the required chain link of causation or aggravation needed for secondary service connection. 38 C.F.R. § 3.310(a) and (b). And as for this claimed right leg disability, the Veteran's STRs show a two-inch scar in the right posterior upper leg upon entrance into service in August 1963. During his AD service, a February 1966 record shows a right knee abrasion following a motor vehicle accident. The report of his separation examination in August 1966 shows normal lower extremities but notes the same right leg scar as on entrance. Relating to his subsequent service in the reserves, the Veteran submitted buddy statements attesting that he hurt his right leg during training in April 1979. There is no description of the accident or injury and no Line of Duty report. His private treatment records indicate he was hit by a car in October 1979 and suffered a right ankle fracture. His duty status at the time of that October 1979 accident has not been verified in terms of whether he was on ACDUTRA or INACDUTRA. An October 1983 reserves' physical indicates short right leg, deformity of right leg with abnormal gait. A June 1993 letter from B.O., M.D., states the Veteran had corrective osteotomy of the right leg secondary to a fracture malunion in August 1992. The Veteran's STRs include a permanent profile for his right leg with no running. He alleges that he continued to complete physical training exercises while on ACDUTRA and INACDUTRA, despite the profile, and that the physical training aggravated his right leg disability. As the Veteran's duty status on October 25, 1979, could potentially establish his claim for service connection for the right leg disability, the Board finds that further attempts to verify his duty status on that particular date are necessary. The emergency treatment records indicate he was admitted to Betheny Medical Center on Thursday, October 25, 1979, at 11:10 p.m. The RO contacted DPRIS for verification of his drill weekends in 1979 but received no information dated earlier than the 1990s. The AMC therefore should make further attempts to verify his duty status on that particular date. As to his claim for impotence, the Veteran's STRs show treatment for acute gonoccocic urethritis in March 1965. He was treated again for urethritis in April 1965. Urinalysis showed staph epidermitis. His separation examination in August 1966 indicated a normal genitourinary system. He alleges he is impotent as a result of those infections in service. Concerning his claim for hypertension, the Veteran's STRs show blood pressure readings of 120/80 on enlistment in August 1963 and 118/78 on separation in August 1966, so on each occasion within normal limits. The first indication of elevated blood pressure was during an Army Reserves retention physical in October 1997. His duty status at the time of that October 1997 retention physical, however, has not been verified. So these claims must be referred to a VA examiner to have him/her review the relevant evidence and determine the etiology of the Veteran's pes planus, right leg disability, impotence, and hypertension - but especially to determine any potential relationship between these conditions and a recognized period of service, whether on AD, ACDUTRA or INACDUTRA. Accordingly, these claims are REMANDED for the following additional development or consideration: 1. Make further attempts to verify the Veteran's duty status on Thursday, October 25, 1979, when he reportedly sustained injury to his right leg. Request any documentation from him that he may have regarding his duty status on that date or from any other source that might have this information. Also verify the Veteran's duty status on October 5, 1997, the date of the Army reserves retention physical that first diagnosed hypertension. 2. Upon verification of his duty status on those dates, schedule a VA compensation examination for a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) the Veteran's impotence is related to or the result of his treatment for urethritis in March and April 1965 during his AD service. All necessary diagnostic testing and evaluation needed to make this determination should be performed. The designated examiner must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file. The Veteran is hereby advised that his failure to report for this scheduled medical examination, without good cause, may have adverse consequences on this pending claim. 38 C.F.R. § 3.655. 3. A VA compensation examination and medical nexus opinion also are needed to determine whether the Veteran's right leg disability is related to the right knee abrasion in February 1966 or whether it alternatively was aggravated by his ACDUTRA or INACDUTRA, especially his physical training requirements. 4. Still additional examination and opinion are needed to determine the whether the second-degree pes planus noted during the Veteran's military entrance examination in 1963 was aggravated by his AD, ACDUTRA or INACDUTRA, especially his physical training requirements. 5. Lastly, medical examination and comment are needed to determine the origin of the Veteran's hypertension, which by all current accounts was first diagnosed during an October 1997 Army Reserves retention physical, so possibly while on ACDUTRA or INACDUTRA. 6. Then readjudicate these claims for service connection for a right leg disability, bilateral pes planus, impotence, and hypertension in light of the additional evidence. If these claims are not granted to the Veteran's satisfaction, send him and his representative a SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs