Citation Nr: 1107349 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 07-15 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for right elbow pain. 3. Entitlement to service connection for temporomandibular joint (TMJ). 4. Entitlement to service connection for vision problems. 5. Entitlement to service connection for a disability manifested by anal pain. 6. Entitlement to service connection for a respiratory disability. 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for low back pain. 9. Entitlement to service connection for bilateral foot disabilities, to include a broken foot. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from June 1981 to June 1985 and January 2004 to March 2005; the Veteran also had service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in White River Junction, Maine. By way of the September 2005 decision the RO denied service connection for tinnitus, right elbow pain, TMJ, vision problems, anal pain, breathing problems, bilateral hearing loss, low back pain, and a broken foot. The issues of service connection for TMJ, vision problems, anal pain, a respiratory disability, low back pain, bilateral hearing loss, and foot disabilities are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The currently demonstrated tinnitus is shown as likely as not to be due to the exposure to loud noise during his period of active service. 2. The Veteran's service treatment records note that he hit his right elbow multiple times during service and that he had difficulty lifting on occasion; however, no current disability was found at the Veteran's VA examination or in any post-service treatment records. CONCLUSIONS OF LAW 1. Extending the benefit of any doubt to the Veteran, disability manifested by tinnitus is due to disease or injury that was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 2. Right elbow pain is not due to disease or injury that was incurred in active service. 38 U.S.C.A. § 1110, 1131, 5.107, 7104 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the favorable disposition of the grant of service connection for tinnitus, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. With respect to the issue of service connection for right elbow pain, legally adequate notice was provided to the Veteran by a correspondence dated in May 2005. This letter detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claims, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Dingess requirements, the Veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claim for service connection for right elbow pain. Therefore, any questions as to the appropriate disability rating or effective date to be assigned are moot. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issues decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and VA treatment records. The RO also afforded the Veteran VA examinations in June 2005 and July 2005. The Board finds that these examinations are sufficient since the duty to assist usually includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examination and treatment. Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional outstanding evidence that is necessary for a fair adjudication of the claims herein decided that has not been obtained. The Veteran was scheduled for a Decision Review Officer hearing in July 2007; however, he failed to report for this hearing and has provided no explanation for his failure to report. Therefore, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d). Based on the foregoing, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board will therefore proceed with appellate review. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection the file must contain evidence establishing all three of the following: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's DD Form 214 shows that he has both National Guard service and active duty service. The Board notes that the term "active military, naval, or air service," as cited in 38 C.F.R. § 3.1(d), includes only active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty for training is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 01(22). However, service connection may still be granted for injury or disease incurred while on active duty for training. By contrast, inactive duty training is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). Service connection may be granted for injuries incurred while on inactive duty training, but not for disease. Tinnitus After a careful review of the claims file, and affording the Veteran the benefit of the doubt, service connection for tinnitus is warranted. As noted above, the Veteran has active duty service from June 1981 to June 1985 and January 2004 to March 2005; however, according to the Veteran's DD 214 he also had National Guard service for 16 years and 4 months in between his active duty service. During the Veteran's National Guard service and active duty service he worked as a canon crew member; the Veteran's DD 214 indicates that he worked as a canon crew member for 15 years. On the Veteran's February 2005 Post-Deployment Health Assessment, he checked "no" to currently having or developing during that development ringing in his ears; however, he did check "often" to exposure of loud noises and excessive vibration. The service treatment records also include a February 2005 VA treatment note that was labeled VA referral, which reflected complaints of intermittent tinnitus and exposure to IED's and other loud noise exposure. Therefore, the Board finds that the Veteran was exposed to loud noises during service and reported tinnitus during his active duty service. Following service, the Veteran was afforded a VA audiologic examination in June 2005, a little less than 3 months after military discharge. The Veteran reported some occasional tinnitus that had started 20 years prior and occurred 10 to 15 times per year. The VA examiner noted exposure to 115mm gun firing with sporadic hearing protection during the Veteran's time in the Vermont Army National Guard from 1990 to 1995. It was also noted that during the Veteran's service in Iraq his humvee was hit on two occasions; once was by a mortar or rocket and once by a car bomb while he was driving. He also reported loud noise levels daily as the driver of the humvee. He wore hearing protection at qualification shooting at Fort Dix and in Kuwait. It was also noted that the Veteran had noise exposure outside of the military, as he worked around loud machinery from 1985 to 1988. He also worked part time as a can crusher from 1993 to the present. The VA examiner rendered a current diagnosis of tinnitus. He opined that the etiology of the tinnitus was unknown, but started over 20 years ago and did not appear to be service-related. Despite the conclusion of the June 2005 VA examiner, an award of service connection is still appropriate here. Indeed, the Veteran's statements as to when the ringing in his ears began are important and credible evidence going toward the matter of when the condition began. The Veteran maintains that his tinnitus is a result of military noise exposure. Again, such noise exposure is consistent with the circumstances of his service. Moreover, the Board points out that he is competent to testify as to ringing in the ears during and after service. See Charles v. Principi, 16 Vet. App. 370 (2002) (providing that ringing in the ears is capable of lay observation). Throughout the course of his communications with VA, the Veteran has consistently maintained that his tinnitus began in active service. The Board finds that such consistency makes his statements credible. The June 2005 VA examiner stated that it began 20 years prior, which was still during the Veteran's National Guard service. However, the Veteran has stated that it began during his active duty service. Given the nature of tinnitus, the Veteran is the only one who is competent to testify as to when he began to perceive tinnitus. In summary, the Veteran seeks service connection for tinnitus as related to in-service noise exposure. It is clear that he was exposed to in-service combat noise. Based on credible statements given by the Veteran, he has experienced tinnitus in service and ever since service. The Board notes that there is no medical evidence against his assertions. Moreover, while it is true that he also had noise exposure during times outside his active service, given his reported onset of symptoms, and given that no medical evidence attributes the tinnitus to noise exposure incurred outside of active service, the record is deemed at least in equipoise as to whether the active service noise exposure resulted in the currently diagnosed tinnitus. Consequently, the Board concludes that service connection for tinnitus is warranted. Right Elbow Pain After a careful review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for right elbow pain. In May 2003, the Veteran had a retention examination for the National Guard and on his report of medical history he checked "yes" to painful, shoulder, elbow, or wrist. In the explanation section he wrote "wrist often ache, knees, elbows, + shoulder as kid dislocated often." The service treatment records also include a February 2005 VA treatment note, labeled VA referral, in which the Veteran reported that he hit his right elbow multiple times on a humvee and as a result had difficulty lifting on occasion and "lost his grip" when it bothered him. Additionally, a February 2005 Report of Medical Assessment reflected complaints of elbow pain as a result of multiple instances of trauma during his deployment. Thus, there is evidence that prior to his deployment and during his active duty the Veteran had elbow pain and injury to his elbow. However, in addition to an in-service injury there needs to be evidence of a current disability to enable a grant of service connection. Such has not been established by evidence here. Indeed, at the Veteran's July 2005 VA examination he had full range of motion in his elbows and there was no pain or tenderness noted. There was also no showing of arthritis. No other post-service clinical evidence demonstrates any objective findings of a right elbow disorder. In this regard, the Veteran is competent to report observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001). It is acknowledged that in some circumstances, lay evidence can establish a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here, however, none of the criteria set forth in Jandreau have been met, and therefore the lay evidence of record does not establish current disability here. Without competent evidence of a current right elbow disability, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In sum, the Board finds that though the Veteran reportedly hit his elbow on a humvee during service, he has no current diagnosed disability and the record does not otherwise show objective manifestations of a chronic disability. Without a currently diagnosed right elbow disability, service connection must be denied. 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). ORDER Service connection for tinnitus is granted, subject to governing criteria applicable to the payment of monetary benefits. Service connection for right elbow pain is denied. REMAND The Board finds that further development is warranted with respect to the remaining issues on appeal, as will be discussed below. TMJ Regarding the TMJ claim, it is noted that the Veteran completed a Pre-Deployment Questionnaire in December 2003, while he was in the National Guard. At that time, he stated that he was getting a prosthesis for his TMJ. His February 2005 Post-Deployment Report of Medical Assessment noted ongoing dental issues and a February 2005 treatment note reflects that the Veteran was being treated for TMJ and was using a splint. At the August 2005 VA examination, a history of TMJ was noted. Thus, while a TMJ disorder clearly pre-dated the Veteran's entry into his second period of active service, the file contains no competent medical opinion addressing whether such disorder was aggravated by active service. Accordingly, an examination is necessary as to this issue on appeal. Moreover, there remains the possibility that the initial injury or treatment for the TMJ may have been incurred during a period of active duty for training or inactive duty training. Accordingly, the dates of such service, as well as any affiliated medical records and line of duty reports should be obtained prior to the examination. Vision Problems Prior to the Veteran's active duty service the record is silent as to any vision problems. However, on his February 2005 Post Deployment Health Questionnaire he checked "yes during" when asked whether he developed during this deployment the symptom of "dimming vision, like the lights were going out." In addition, a February 2005 service treatment record reflects a complaint of decreased visual acuity. At the Veteran's July 2005 VA examination he was diagnosed with presybopia. Since the July 2005 VA examination, a January 2007 VA treatment note indicates a diagnosis of blurred vision. Given the above, a new VA examination should be arranged in order to clarify the Veteran's diagnosis and to obtain an opinion on the etiology of any vision problems detected. Anal Problems Although the record demonstrates relevant complaints during service, the September 2005 rating decision denied service connection for anal pain because there was no evidence of permanent residuals or chronic disability. Indeed, the July 2005 VA examination noted a history of resolved anal fissures and resolved hemorrhoids. However, the Veteran has since been treated for chronic diarrhea, anal fissures, and hemorrhoids; in July 2006 he was diagnosed with "likely irritable bowel syndrome" and small external hemorrhoids were noted. Accordingly, a new VA examination should be scheduled to determine the current nature and etiology of any anal disorder. Breathing Problems The September 2005 RO rating decision denied service connection for breathing problems, finding that a respiratory disorder preexisted service and that there was no evidence that such a disorder was permanently worsened as a result of service. A July 2005 VA examination then of record noted a history of sinusitis but offered no opinion as to its etiology, or whether a preexisting disorder was aggravated by the Veteran's active service. Given this, and given subsequent evidence reflecting respiratory complaints, a new examination should be arranged. Prior to the Veteran's active duty military service, on his May 2003 Report of Medical History for Retention Examination he noted that he had asthma and shortness of breath, as well as sinusitis, and chronic or frequent colds. During the Veteran's active duty service, the Veteran was diagnosed with acute bronchitis in February 2004 and in November 2004 it was noted that he was snoring for three weeks and had sinusitis. There were several treatment notes in February 2005; in one it was stated that the Veteran would follow-up at home with his sleep apnea. Another February 2005 service treatment record, labeled VA referral, noted that the Veteran continued to experience cough and sputum production occasionally. On a February 2005 Report of Medical Assessment the health care provider stated that the Veteran had sleeping problems and breathing problems. On the Veteran's February 2005 Post Deployment Health Assessment the Veteran checked "yes now" and "yes during" to the questions if he had chronic cough and runny nose during his deployment. He also checked that "often" he was exposed to smoke from burning trash or feces, vehicles or truck exhaust fumes, industrial pollution, and sand/dust. He also checked "sometimes" that he was exposed to JP8 or other fuels and solvents. Bilateral Hearing Loss The Veteran claims that he has bilateral hearing loss due to his military service. As discussed above, in-service noise exposure is established in this case. However, the claim was denied by the RO because there was no evidence of a current diagnosis for VA standards under 38 C.F.R. § 3.385 at the June 2005 VA audiologic evaluation. Given the passage of time since the last examination, and the clear evidence of in-service noise exposure, another examination should be arranged in this case. Low Back Pain The Veteran's claim of service connection for a low back disability was denied by the RO on the basis that it preexisted active service and was not aggravated therein. However, the July 2005 VA examination did not contain an opinion addressing etiology in general, or the likelihood of in-service aggravation in this case. Therefore, another examination should be scheduled. Foot Disabilities While in-service complaints are reflected in the record, the September 2005 RO rating decision denied service connection for bilateral foot disability because there was no evidence of permanent residuals or a chronic disability. The Board finds that a new VA examination is warranted in order to clarify diagnoses rendered at the July 2005 VA examination. Then the examiner should address the etiology of any diagnoses rendered, to include whether there was in-service aggravation of a preexisting condition. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. Based on the Veteran's response, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. The RO should ensure that its letter meets the requirements of the recent decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. The RO should contact the appropriate custodian of the Veteran's National Guard records and request that they send any documentation, including but not limited to retirement point sheets, indicating all dates of active duty for training and inactive duty training. Additionally, any associated medical records and line of duty reports should be submitted as well. Any negative search response should be noted in the record and communicated to the Veteran. If it is determined that additional requests would be futile, then a memorandum of unavailability should be drafted and added to the claims file. 3. After completion of the above to the extent possible, the Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his TMJ. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding TMJ. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should state the current nature of the Veteran's TMJ. The VA examiner should then opine as to the following questions: (a) Whether the Veteran's TMJ was a result of his service in the National Guard, including his active duty for training or inactive duty for training? (b) If not incurred during a period of active duty for training or inactive duty training, was any pre-existing TMJ permanently aggravated beyond its natural progression by the Veteran's active duty service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 3. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of vision problems. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding vision problems. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should determine the nature and etiology of the Veteran's vision problems. The VA examiner should state whether any chronic vision disability is at least likely as not related to any period of active service, with consideration of the in-service documentation and complaints of decreased visual acuity. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 4. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of anal pain, including any condition related to his anal pain. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding anal pain. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should determine the nature and etiology of the Veteran's anal pain, including conditions related to his anal pain. The VA examiner should state if any anal pain is at least likely as not related to any period of active service. In so deciding, the examiner should consider the in-service treatment and diagnoses of anal pain, diarrhea, hemorrhoids, and fissures. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 5. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of a respiratory disability. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding breathing problems. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. For any diagnosed respiratory disability, the VA examiner should then opine to the following questions: (a) Is it at least as likely as not that any respiratory disability was incurred during a period of active service? (b) If a respiratory disability was not incurred during a period of active duty for training but is nevertheless found to preexist his active service beginning January 2004, was any such preexisting disorder permanently aggravated beyond its natural progression by active duty service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 6. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of any bilateral hearing loss. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding bilateral hearing loss. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should state if the Veteran has bilateral hearing loss that meets the VA standards under 38 C.F.R. § 3.385. If so, the examiner should opine whether it is at least likely as not related to any period of active service. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 7. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of any back problems. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding back problems. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. For any diagnosis rendered, the VA examiner should opine as to the following questions: (a) Is such diagnosis at least as likely as not related to any period of active service? (b) If a back disability was not incurred during a period of active duty for training or inactive duty training but is nevertheless found to preexist his active service beginning January 2004, was any such preexisting disorder permanently aggravated beyond its natural progression by active duty service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If the examiner cannot respond without resorting to speculation, he should explain why a response would be speculative. 8. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of foot problems. The entire claims file must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions regarding foot problems. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. For all diagnosed foot problems the VA examiner should then opine as to the following questions: (a) Is the foot disability at least likely as not related to the Veteran's military service? (b) If a foot disability was not incurred during a period of active duty for training or inactive duty training but is nevertheless found to preexist his active service beginning January 2004, was any such preexisting disorder permanently aggravated beyond its natural progression by active duty service? If a back disability was not incurred during a period of active duty for training but is nevertheless found to preexist his active service beginning January 2004, was any such preexisting disorder permanently aggravated beyond its natural progression by active duty service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 9. After completing the requested actions, and any additional notification and/or development deemed warranted, the issues on appeal should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claim. The Veteran 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). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). ______________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs