Citation Nr: 1132285	
Decision Date: 09/01/11    Archive Date: 09/12/11

DOCKET NO.  06-22 265	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disabilities.

2.  Entitlement to service connection for diabetes mellitus, claimed as secondary to in-service herbicide exposure.

3.  Entitlement to service connection for genitourinary disorders, to include kidney and urinary conditions, claimed as secondary to service-connected diabetes mellitus.

4.  Entitlement to service connection for bilateral lower extremity pain, to include peripheral neuropathy, claimed as secondary to service-connected diabetes mellitus.

5.  Entitlement to service connection for vision loss, claimed as secondary to service-connected diabetes mellitus.

6.  Entitlement to service connection for bilateral ulnar nerve damage, claimed as secondary to service-connected diabetes mellitus.

7.  Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus.

8.  Entitlement to service connection for anemia, claimed as secondary to service-connected diabetes mellitus.

9.  Entitlement to a rating in excess of 10 percent prior to August 7, 2000, and in excess of 20 percent from August 7, 2000, for Osgood-Schlatter's disease of the left knee.

10.  Entitlement to an initial evaluation in excess of 10 percent for left knee traumatic arthritis. 

11.  Entitlement to service connection for a right knee disorder, to include as secondary to service-connected left knee disabilities.

12.  Entitlement to service connection for a right foot and ankle disorder, to include a secondary to service-connected left knee disabilities.

13.  Entitlement to service connection for degenerative arthritis of the back.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARINGS ON APPEAL

Veteran 


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel 


INTRODUCTION

The Veteran served on active duty from March 1967 to October 1970.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 1993, the Veteran testified during a hearing before a Hearing Officer at the RO concerning his increased rating claim for his service-connected left knee disability; a transcript of that hearing is of record.

In April 1998, the Board remanded the matter of entitlement to an increased rating for his left knee disability to the RO for additional development.

In an April 2000 rating decision, the RO granted entitlement to service connection and assigned a separate 10 percent rating for traumatic arthritis of the left knee, effective April 21, 1998.  Thereafter, in an April 2001 rating decision, the RO assigned a 20 percent rating for Osgood-Schlatter's disease of the left knee, effective August 7, 2000.  The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved that claim.  AB v. Brown, 6 Vet. App. 35, (1993).

The Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO in November 2006; a transcript of that hearing is of record.

In December 2008 and May 2010, the Board remanded these matters to the RO via the Appeals Management Center (AMC) for additional development.

In November 2010, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record.  The record was held open for a period of 30 days to afford the Veteran an opportunity to submit additional evidence.  During that month, the Veteran's representative submitted to the Board additional evidence for consideration in connection with the claims on appeal along with a waiver of RO jurisdiction of such evidence.  Thus, the Board accepts this evidence for inclusion in the record on appeal.  38 C.F.R. § 20.1304 (2010).

Issues 6 to 13 on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC.


FINDINGS OF FACT

1.  In an April 1998 decision, the Board denied entitlement to service connection for a right knee disorder on a direct basis and as secondary to a service-connected left knee disability based on the finding that the claim was not supported by cognizable evidence showing that the claim was plausible or capable of substantiation.

2.  New evidence associated with the claims file since the April 1998 denial, is not cumulative or redundant, does bear directly and substantially upon the specific matter under consideration, and is so significant that it must be considered to fairly decide the merits of the claim for service connection for a right knee disorder.

3.  The Veteran was stationed in Korea from September 1968 to October 1970.

4.  Diabetes mellitus is among the diseases recognized by VA as etiologically related to herbicides exposure, to include Agent Orange.

5.  Probative and credible evidence of record demonstrates that the Veteran's military service involved participation in activities along the southern boundary of the demilitarized zone (DMZ) of Korea between September 1968 and October 1970.

6.  Diabetic nephropathy is causally related to the Veteran's service-connected diabetes mellitus.

7.  Bilateral lower extremity peripheral neuropathy is causally related to the Veteran's service-connected diabetes mellitus.

8.  Diabetic retinopathy is causally related to the Veteran's service-connected diabetes mellitus.


CONCLUSIONS OF LAW

1.  The April 1998 Board decision, which denied entitlement to service connection for a right knee disorder, is final.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2010); 38 C.F.R. §§ 20.302, 20.1100, 20.1104 (2010).

2.  Evidence received since the Board's April 1998 denial is new and material, and the criteria for reopening the Veteran's claim for service connection for a right knee disorder have been met.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156(a) (2001), 38 C.F.R. § 20.1105 (2010).

3.  The criteria for service connection for diabetes mellitus have been met.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010).

4.   Diabetic nephropathy is proximately due to or the result of a service-connected disease.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2010).

5.  Bilateral lower extremity peripheral neuropathy is proximately due to or the result of a service-connected disease.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2010).

6.  Diabetic retinopathy is proximately due to or the result of a service-connected disease.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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, 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 seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to all five elements of a service connection claim, including: (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).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

In claims to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

In this decision, as the Board has reopened the Veteran's claim of entitlement to service connection for a right knee disorder (and remanded it for further development) as well as granted entitlement to service connection for diabetes mellitus, diabetic nephropathy, bilateral lower extremity peripheral neuropathy, and diabetic retinopathy (complete grants of the benefits sought on appeal), no additional discussion of VA's duty to notify and assist is necessary for these matters.

New and Material Evidence - Service Connection for Right Knee Disorder

Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002).  When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new" and "material."  Smith v. West, 12 Vet. App. 312 (1999).

When a rating decision issued by the RO is affirmed by the Board, that determination is considered final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1104 (2010).  When a claimant requests that a claim be reopened after an appellate decision has been promulgated and submits evidence in support thereof, a determination as to whether such evidence is new and material must be made and, if it is, as to whether it provides a basis for allowing the claim.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1105 (2010).

If VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the veteran's claim in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).  When making determinations as to whether new and material evidence has been presented, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).

The definition of new and material evidence contained in 38 C.F.R. § 3.156(a) was revised, effective on August 29, 2001.  66 Fed. Reg. 45,628 (2001); 38 C.F.R. § 3.156(a) (2010).  These changes are prospective, however, and only apply to claims filed on or after August 29, 2001.  As the Veteran's claim was filed in January 2001, these changes do not apply to the present case.

VA regulations effective prior to August 29, 2001, provided that under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."  New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a) (prior to August 29, 2001).

The Veteran filed a claim for entitlement to service connection for a right knee disorder in July 1992.  In a November 1992 rating decision, the RO denied entitlement to service connection for a right knee disorder on a direct basis and as secondary to the service-connected left knee disability.  In an April 1998 decision, the Board affirmed the denial.  The Board found the Veteran's claim was not well-grounded as there was no evidence of current disability of the right knee which had been linked to active duty by competent medical evidence.  It was noted that service connection was not warranted on a presumptive basis, as degenerative arthritis was not present to a compensable degree within a year of separation from service.  The Board also indicated that there was no competent evidence of record linking the Veteran's post-service reported right knee disorder to his service-connected left knee disability.

As noted above, when a rating decision issued by the RO is affirmed by the Board, that determination is considered final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1104 (2010).

The Veteran attempted to reopen his claim for service connection for a right knee disorder in January 2001.  This appeal arises from the RO's April 2001 denial of the Veteran's claim of entitlement to service connection for right knee arthritis.  Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).

Evidence added to the claims file since the April 1998 denial includes statements from the Veteran; copies of service treatment records; service personnel records; private treatment records; multiple lay statements from the Veteran's fellow servicemen; VA examination reports dated in April 1999, March 2000, and January 2003; VA treatment records dated from 1998 to 2009; hearing transcripts dated in November 2006 and November 2010; and multiple internet maps and articles.

Some of the additionally received evidence is "new" in the sense that it was not previously before agency decision makers.  In this regard, new evidence of record includes a September 2000 statement from a private physician, J. D. M., M.D.  He diagnosed degenerative joint disease of the right foot and ankle, indicating that the Veteran's left sided symptoms caused him to walk differently which apparently precipitated a flare up or arthritic changes on the right side.  After noting that the Veteran's overweight status was a negative factor, he further opined that there appeared to be a relationship between the right knee problem and the prior military injury on the left.

In an October 2010 statement, a VA physician indicated that the Veteran had diabetes, anemia, and osteoarthritis among several other chronic conditions.  The physician also opined that having osteoarthritis in one weight bearing joint can lead to abnormalities in gait that could make other joints prone to arthritis as well.  He reported that the Veteran had osteoarthritis in multiple joints.  He concluded that causality to these conditions was a difficult proposition and was beyond the scope of his practice. 

This evidence is "new" in that it was not previously before agency decision makers at the time of the 1998 Board decision, and is not cumulative or duplicative of evidence previously considered.  This evidence is "material", as it discusses the etiology of the Veteran's claimed right knee disorder.  The Board has determined that it bears directly and substantially upon the specific matter under consideration; and, because this evidence is presumed to be credible for the limited purpose of reopening the Veteran's claim, it is considered to be so significant that it must be considered in order to fairly decide the merits of the claim.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Under these circumstances, the Board concludes that the criteria for reopening the claim for entitlement to service connection for a right knee disorder are met.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

Entitlement to Service Connection for Diabetes Mellitus

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).

Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period.  For certain chronic disorders, such as diabetes mellitus, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010).

Additionally, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  Type 2 diabetes also known as Type II diabetes mellitus shall be service connected if the veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, if the disease becomes manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2010).

The Department of Defense (DOD) has confirmed that Agent Orange was used along the demilitarized zone (DMZ) in Korea from April 1968 to July 1969.  Fields of fire between the front line defensive positions and the south barrier fence were defoliated.  The size of the treated area was a strip of land 151 miles long and up to 350 yards wide from the fence to north of the "civilian control line."  There was no indication that herbicides were sprayed in the DMZ itself.  Herbicides were applied through hand spraying and by hand distribution of pelletized herbicides.  Although restrictions were put in place to limit potential for spray drift, run-off, and damage to food crops, records indicate that the effects of spraying were sometimes observed as far as 200 meters down wind.  Various brigades from the 2nd and 7th Infantry Divisions were designated as in the area during the period of use of herbicides in Korea.  Field artillery, signal, and engineer troops also were supplied as support personnel during the time of the confirmed use of Agent Orange.  The estimated number of exposed personnel was 12,056.  See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C; see also Veterans Benefits Administration (VBA) "Fact Sheet" distributed in September 2003.

If it is determined that a veteran who served in Korea from April 1968 to July 1969 belonged to one of the units identified by DoD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply.  If a veteran instead either belonged to a different unit located in Korea during this time period, or served in one of the units identified by DOD between September 1, 1967 and August 31, 1971, but not during 1968 or 1969, then herbicide exposure will represent a factual determination to be established on a case-by-case basis.  See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block p.  

VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea.  VA's updated Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block o directs that a detailed statement of a veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's (DoD) inventory of herbicide operations to determine whether herbicides were used or tested as alleged.  If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification.

The Board acknowledges that, effective February 24, 2011, VA amended its adjudication regulations to extend a presumption of herbicide exposure to certain veterans who served in Korea.  Specifically, VA is added a new paragraph (a)(6)(iv) to 38 C.F.R. § 3.307 that reads as follows:

A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.  See 76 Fed. Reg. 4245 (Jan. 25 2011).

Regulations governing presumptive service connection for Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation.  Combee v. Brown, 34 F.3d 1039 (1994).

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2010).

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

The Federal Circuit also has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  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, (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).  Additionally, the Federal Circuit held that lay evidence may also be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.159(a).

Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact.  The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event.  However, if the weight of the evidence is against the appellant's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102 (2010).

The Veteran seeks entitlement to service connection for diabetes mellitus, contending that his claimed disorder is related to in-service herbicide exposure.

Service treatment records do not show any complaints, findings, or diagnosis of diabetes mellitus.  However, service personnel records detailed that the Veteran was on active duty in the United States Army from March 1967 to October 1970; and his DD-214 indicates that his military occupational specialty (MOS) was Voice Interpreter.  Personnel records indicate that the Veteran was stationed in Kanghwa-do, Korea with the US Army Security Agency (USASA) Operations Company from September 1968 to October 1970.

In his August 2003 claim, the Veteran reported that his diabetes mellitus began in 1996.  He asserted that as a Korean linguist during active duty, he was assigned to Korean and US Army units along the DMZ in the 2nd and 7th Corp areas.  He further reported that he was also in contact with Army and Marine unit areas for spraying of Agent Orange along the DMZ, indicating that he directed Korean troops and contractors in hand spraying designated areas along the DMZ.  The Veteran contended that he was exposed to Agent Orange when assigned 8 to 10 extra work details during service while he was stationed on Kanghwa-Do, Korea from September 1968 to October 1970.  He reported direct exposure to Agent Orange when he assigned in loading spray equipment, working with the spray operator, and drinking from open field containers during work details.  

Post-service VA and private treatment records dated from 1996 to 2009 confirm that the Veteran has been diagnosed with diabetes mellitus.  The issue then becomes whether the Veteran was in fact exposed to herbicides while in service so as to trigger the presumption.

In June 2004, the Veteran sent map locations and pictures of his main compound, operations compound, sign long lines, and base camp in Korea.  He reiterated that he worked and traveled throughout Korea from September 1968 to October 1970 and that Agent Orange was sprayed in his base camp area by Korean troops and contractors. 

In a November 2004 letter to a congressional representative associated with the record, the Director of the United States Armed Services Center for Research of Unit Records (formerly USASCRUR, then CURR) responded concerning the Veteran's possible exposure to herbicides during his assignment in Korea from 1968 to 1970.  His unit history indicated that the USASA Operations Company was located on the island of Kanghwa, South Korea, approximately 45 miles for Seoul off the Western Coast of the Kimpo Peninsula.  According the military records, herbicides were used in Korea between 1967 and 1969 with chemical herbicides used along the southern boundary of the DMZ during 1967-1969 by the Republic of Korea Armed Forces as part of counter-infiltration operations.  Herbicides were noted to be applied using hand sprayers and M8A2 trailer mounted decontamination apparatus.  While Korean Armed Forces personnel were advised in the use of herbicides by United States Army Non Commissioned Officers, no United States personnel were known to have been actually involved in their application. 

In a March 2005 lay statement, the Veteran's in-service supervisor during the summer of 1969 indicated that he assigned the Veteran to guard a detachment of Korean contractors and military in a two day project to police/clean-up the security walk paths and fences around the USASA Operations Company base camp, operations compound, and signal long lines compound as well as the Voice of United Nations broadcast site.  He further reported he observed the Veteran's uniform to be covered with an oily brown substance due to windy conditions in the mountainous area of the base. 

Internet research information was associated with record in 2005 concerning the 508th USASA Group.  The documents contained information about the 226th USASA Operations Company stationed on Kanghwa-do Island that ran ELINT and COMINT operations.  Additional internet documents included job descriptions of the Veteran's MOS (Crytologic Linguist), noting that duties included supervising signal intelligence/electronic warfare operations and required a very heavy physical demands rating as well as Top Secret Clearance.  

In January and June 2006 statements, the Veteran highlighted that his unit served as divisional support for gathering intelligence and counter intelligence often following the infantry into the field in support.  He reported that he was often less than a couple miles from the North Korean border well within the DMZ boundary and spray areas for Agent Orange.  

During his November 2006 and November 2011 hearings, the Veteran reiterated the assertions of Agent Orange exposure discussed above. 

In a March 2007 response, a Compensation and Pension Service (C&P) policy staff member indicated that he had reviewed a listing of herbicide use and test sites outside Vietnam provided to his office by DoD.  He indicated that the list does not contain any references to routine base maintenance (such as range management, brush clearing, etc.) and that DoD did not compile a list of small scale herbicide applications.  Regarding the Veteran, the C&P staff member found that his security unit was not one of the units listed in M21-1MR.  An internet search for Kangwa-do showed that the island did not appear to be near the DMZ and that DoD information could not corroborate his participation in Agent Orange spray detail in that area.  Thereafter, he discussed C&P policy that instructed the RO to contact U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Research of Unit Records (USASCRUR)) for corroboration of the Veteran's claimed exposure.  He further indicated that for cases of potential herbicide exposure outside Vietnam, the RO must consider whatever facts are available about herbicide use and the Veteran's location and make a finding regarding exposure on a case-by-case basis. 

In a February 2010 response letter to a congressional representative associated with the record, the Director of JSRRC indicated that the facility had coordinated its research with the National Archives and Records Administration (NARA) as well as U. S. Army Intelligence Security Command at Fort Belvoir, Virginia.  The Director supplied the same information previously contained in the November 2004 letter from CURR discussed in detail above. 

In November 2010, the Veteran submitted numerous lay statements from fellow servicemen who served at Kanghwa, Korea.  It was indicated that North Korea could be seen from the camp's operation area clearly from the naked eye.  

As an initial matter, current evidence of record clearly showed findings of diabetes mellitus.  The Veteran's claimed disorder, diabetes mellitus, is classified as one of the enumerated diseases associated with Agent Orange exposure under 38 C.F.R. § 3.309(e) (2010).  The Board must now determine whether exposure to Agent Orange can be conceded in this case.

As discussed above, when it is determined that a veteran belonged to a different unit located in Korea and not identified by DoD during the time period between April 1, 1968, and August 31, 1971, herbicide exposure will represent a factual determination to be established on a case-by-case basis.  See VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2, Section C, Topic 10, Block p.  

In this case, the Board notes that the AMC and RO followed established development policies by contacting C&P then JSRRC to assist the Veteran in corroborating his claimed herbicide exposure during his period of active duty in from September 1968 to October 1970.  Unfortunately, those additional searches were unable to specifically corroborate the Veteran's claimed herbicide exposure in Korea.  

In Bardwell v. Shinseki, 24 Vet. App. 36 (2010), the Court recently held that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service.  It was noted that in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident.

Here, the Board finds the Veteran's assertions of herbicide exposure in Korea from observing a small scale spraying work detail to clean up pathways and fences at his assigned unit location as well as from his MOS as a linguist acting in a support capacity to other units along the southern border of the DMZ while on active duty September 1968 to October 1970 to be credible.

The Board has weighed the Veteran's credible lay assertions that herbicide exposure occurred during his service in Korea against other evidence of record, including lack of documentary evidence of the specific incidents.

In giving due consideration to the places, types, and circumstances of his service, including duty assignment and MOS under 38 U.S.C.A. § 1154(a), the Board finds that the Veteran's in-service duties may well have exposed him to herbicides.  Additional information from internet resources further bolstered the Veteran's assertions of in-service duties required by his MOS.  Internet research information associated with record in 2005 also contained information about the 226th USASA Operations Company stationed on Kanghwa-do Island, indicating that the company ran ELINT and COMINT operations and noting that a Linguist's duties included supervising signal intelligence/electronic warfare operations as well as required very heavy physical demands and top secret security clearance.  

Further, information provided by C&P Service and JSRRC specifically noted that 
the DoD list does not contain any references to routine base maintenance and that DoD did not even compile a list of small scale herbicide applications.  Concerning his observation and exposure during a small scale spraying herbicide application, the Veteran provided a detailed statement of his in-service commanding officer which confirmed that he was ordered to guard a work detail charged with clearing pathways and fences at his assigned duty station and that he was observed during that time to have an oily brown substance covering his uniform.  Photographs of the Veteran's duty station showed that it was located in a mountainous area with surrounding vegetation. 

However, the most probative evidence comes in the form of the Veteran's testimony as to his work in the DMZ conducting electronic surveillance.  The reason for this is that it does not rely on lay testimony that is attempting to describe exposure to certain chemical substances.  Rather, the testimony establishes the Veteran's presence in the Korean DMZ during the period in which it has been acknowledged that herbicides were used therein.  The Veteran is indeed competent to make such an assertion, and the Board has not found any reason to doubt the credibility of his testimony, as the testimony is supported by a variety of sources.  The Veteran's assertion of being in the DMZ is also supported by evidence about his MOS and is therefore consistent with the places, and circumstances of the Veteran's service.  See 38 U.S.C.A. § 1154.  As such, the evidence establishes that the Veteran was in fact in the DMZ during the required period, and therefore he satisfies the criteria for the presumption of exposure to herbicides to take effect. 

It is also noted that no evidence has been advanced to rebut the presumption that herbicide exposure during service caused the Veteran's diabetes mellitus.

As such, resolving all doubt in the Veteran's favor and in view of the totality of the evidence, including the Veteran's documented in-service duty assignment and unit location, the current findings of diabetes mellitus, above referenced presumptive procedures of 38 C.F.R. §§ 3.307 and 3.309, and the credible lay assertions of the Veteran, the Board finds that entitlement to service connection for diabetes mellitus is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As such, the appeal is granted.  

Claims for Entitlement to Service Connection on a Secondary Basis

The Veteran has asserted that he suffers from multiple disorders, to include kidney and urinary conditions, bilateral lower extremity peripheral neuropathy, and vision loss, as a result of his service-connected diabetes mellitus.  In addition, he has also contended that his claimed genitourinary disorder was incurred during service.

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2010).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability.  71 Fed. Reg. 52744-47 (Sept. 7, 2006); 38 C.F.R. § 3.310(b) (2010).  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998).

Service treatment records do reflect treatment for myopia with trouble reading.  The Veteran was noted to wear glasses.  Treatment notes showed findings of dysuria (May 1968), urinary tract infection symptoms (May 1970), nonspecific urethritis (NSU) (June 1970), and nocturia (September 1970). 

A post-service VA examination report dated in January 1971 detailed only NSU by history with no recurrence.  Post-service VA and private treatment records dated from 1992 to 2009 showed treatment for diabetes, probable peripheral vascular disease, microalbuminuria, renal insufficiency, peripheral neuropathy, diabetic neuropathies, BDR (background diabetic retinopathy) of both eyes, proteinuria, chronic kidney disease, and Charcot joint or neuropathic arthropathy. 

In a June 1999 statement, a private physician, R. D. A., M.D., assessed diabetes mellitus as well as renal insufficiency.  He noted evidence of proteinuria, indicating that it was most likely secondary to hypertension and diabetes mellitus. 

In an October 2002 statement, a private physician, J. J. A., M.D., listed an impression of diabetes mellitus, hypertension, and microalbuminuria (etiology most like due to diabetes mellitus).

In a July 2009 VA treatment record, a VA nephrology resident listed an assessment of chronic kidney disease likely secondary to diabetes mellitus.  

In an October 2010 statement, a VA physician indicated that the Veteran had diabetes, anemia, and osteoarthritis among several other chronic conditions.  He noted that diabetes could certainly lead to many other system both system abnormalities including cardiovascular, renal, ophthalmic, and peripheral neurologic pain syndromes - several of which the Veteran suffered from.  He concluded that causality to these conditions was a difficult proposition and was beyond the scope of his practice. 

In a November 2010 statement, a private physician, P. P. A., M.D., noted that the Veteran had diabetes mellitus with complication of nephropathy and neuropathy of lower extremities. 

As to Wallin element (1), the medical evidence of record demonstrates that the Veteran is currently diagnosed with diabetic nephropathy and bilateral lower extremity peripheral neuropathy.  While the current VA treatment notes dated in 2008 did not show findings of diabetic retinopathy, the Board notes that multiple VA treatment records dated during the appeal period detailed findings of that disorder.  To this end, the Court has held that the requirement that a claimant have a current disability in order to establish service connection may be satisfied when a claimant has the disability at the time he files a claim for VA disability compensation, or during the pendency of the claim, even though the disability resolves prior to the Secretary's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).  With respect to Wallin element (2), it is undisputed that the Veteran is currently service-connected for diabetes mellitus.  Further, as a causal relationship between the Veteran's claimed disorders and his service-connected diabetes mellitus has been established through medical evidence from VA and private treatment providers of record discussed above, Wallin element (3), medical nexus or causal relationship, has been satisfied.

Resolving any reasonable doubt in his favor and in view of the totality of the evidence, the Board finds that the evidence supports a finding that the Veteran's bilateral lower extremity peripheral neuropathy, diabetic retinopathy, and diabetic nephropathy were proximately due to or the result of his service-connected diabetes mellitus.  Significantly, there is also no evidence to the contrary.  Thus, the Board finds that the evidence of record is at least in equipoise, and therefore, affording the Veteran the benefit of the doubt, service connection for bilateral lower extremity peripheral neuropathy, diabetic retinopathy, and diabetic nephropathy is warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  As such, the appeals are granted.
ORDER

New and material evidence has been received, and the Veteran's previously denied claim of entitlement to service connection for a right knee disorder is reopened. 

Service connection for diabetes mellitus is granted. 

Service connection for diabetic nephropathy, claimed as secondary to service-connected diabetes mellitus, is granted.

Service connection for bilateral lower extremity peripheral neuropathy, claimed as secondary to service-connected diabetes mellitus, is granted.

Service connection for diabetic retinopathy, claimed as secondary to service-connected diabetes mellitus, is granted.


REMAND

The Board's review of the claims file reveals that further development on issues from 6 to 13 on the title page is warranted.

As an initial matter, the Board notes that appeals for entitlement to a rating in excess of 10 percent prior to August 7, 2000, and in excess of 20 percent from August 7, 2000, for Osgood-Schlatter's disease of the left knee, entitlement to an initial evaluation in excess of 10 percent for left knee traumatic arthritis, and entitlement to service connection for a right foot and ankle disorder (to include a secondary to service-connected left knee disabilities) are still pending but have not been readjudicated since a statement of the case (SOC) was issued in July 2003.  Since that time, voluminous amounts of additional evidence has been associated with the Veteran's claims file that is pertinent to the Veteran's claims on appeal.  

Thus, while regretting the additional delay in this case, the Board has no alternative but to remand these matters to the AMC for consideration of the additional evidence received, in the first instance.  38 C.F.R. § 20.1304(c).  Appropriate action should be taken to ensure that the AMC readjudicates the Veteran's claims of entitlement to a rating in excess of 10 percent prior to August 7, 2000, and in excess of 20 percent from August 7, 2000, for Osgood-Schlatter's disease of the left knee, entitlement to an initial evaluation in excess of 10 percent for left knee traumatic arthritis, entitlement to service connection for a right knee disorder (to include a secondary to service-connected left knee disabilities), and entitlement to service connection for a right foot and ankle disorder (to include a secondary to service-connected left knee disabilities) on the basis of all the evidence on file.

In multiple written statements, as well as during his November 2011 hearing, the Veteran has clearly asserted that his claimed right knee, foot, and ankle disorders were proximately caused by or aggravated (permanently worsened) by his service-connected left knee disabilities.  

While service treatment records do not show any complaints, treatment, or findings of right knee, foot, or ankle disorders, post-service VA and private treatment records dated from 1992 to 2009 showed treatment for lateral subluxation and degenerative joint disease of right knee, arthritis, mild degenerative arthritis of the right knee without significant organic finding or functional limitation, and degenerative joint disease of the right foot and ankle. 

In a February 1997 VA joints examination report, the examiner, a VA physician, opined that the Veteran's right knee condition was not secondary to his left knee disability.  However, in a September 2000 statement, Dr. Melton diagnosed degenerative joint disease of the right foot and ankle, indicating that the Veteran's left-sided symptoms caused him to walk differently which apparently precipitated a flare up or arthritic changes on the right side.  After noting that the Veteran's overweight status was a negative factor, he suggested that there appeared to be a relationship between the right knee problem and the prior military injury on the left. 

In an October 2010 statement, a VA treating physician indicated that the Veteran suffered from osteoarthritis among several other chronic conditions.  He noted that having osteoarthritis in one weight bearing joint can lead to abnormalities in gait that could make other joints prone to arthritis as well and reported that the Veteran had osteoarthritis in multiple joints.  Thereafter, he concluded that causality to these conditions was a difficult proposition and was beyond the scope of his practice. 

In light of the cumulative record discussed above, the AMC should arrange for a VA medical examination to clarify the nature and etiology of the Veteran's claimed right knee, foot, and ankle disorders on appeal.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Further, the Board notes that the Veteran last had a VA joints examination in January 2003 to evaluate his service-connected left knee disabilities.  VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997).  Accordingly, the AMC should arrange for the Veteran to undergo a VA joints examination at an appropriate VA medical facility to determine the severity of his service-connected left knee disabilities.

The Veteran has also asserted that he suffers from multiple disorders, to include bilateral ulnar nerve damage, anemia, and hypertension, as a result of his service-connected diabetes mellitus.  In addition, he has also contended that his claimed hypertension was incurred during service.

It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS).  In the update was published in 2007, hypertension was not among the diseases found to have a scientific relationship such that it can be presumed that exposure to herbicides used in Vietnam during the Vietnam era was a cause of the disease.  72 Fed. Reg. 32395-32407 (2007).  The Board further notes that on August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents.  Note 3 at the end of the revised § 3.309 indicated that the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  See 75 Fed. Reg. 53202.

While service treatment records do not reflect treatment or a diagnosis of hypertension, blood pressure readings of 130/70 (January 1967) and 148/72 (September 1970) were recorded during service.   

Post-service VA and private treatment records dated from 1992 to 2009 showed treatment for hypertension, diabetes, iron deficiency anemia (IDA) of unknown etiology, right arm pain, left hand pain and numbness, peripheral neuropathy, isolated findings of congestive heart failure and coronary artery disease, left ulnar neuropathy with surgical release, diabetic neuropathies, and transient ischemic attack. 

In an October 2010 statement, a VA physician indicated that the Veteran had diabetes, anemia, and osteoarthritis among several other chronic conditions.  He noted that diabetes could certainly lead to many other system both system abnormalities including cardiovascular, renal, ophthalmic, and peripheral neurologic pain syndromes - several of which the Veteran suffered from.  He further opined that diabetes is one of several chronic conditions that can also lead to chronic anemia.  However, he concluded that causality to these conditions was a difficult proposition and was beyond the scope of his practice. 

In a November 2010 statement, a private physician, P. P. A., M.D., noted that the Veteran had mild anemia possibly from recurrent gastritis. 

In light of the cumulative record, the AMC should arrange for the Veteran to undergo VA examinations to determine the nature and etiology of his claimed bilateral ulnar nerve damage, anemia, and hypertension.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The claims file also reflects that the Veteran has received medical treatment for his service-connected left knee disabilities as well as his claimed right lower extremity, bilateral ulnar nerve damage, anemia, and hypertension disorders from the VA Medical Center (VAMC) in Tampa, Florida, as well as the Community-Based Outpatient Clinic (CBOC) in Lakeland, Florida; however, as the claims file only includes records from these facilities dated up to August 2009, any additional records from these facilities should be obtained.  The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  The AMC should obtain and associate with the claims file all outstanding VA records.

Finally, in Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that when an appellant files a timely notice of disagreement (NOD) and there is no statement of the case (SOC) issued, the Board should remand, rather than refer, the issues to the RO for the issuance of a SOC.  In an April 2003 rating decision, the RO denied entitlement to service connection for degenerative arthritis of the back.  In a statement received in June 2003, the Veteran expressed disagreement with the RO's denial of entitlement service connection for degenerative arthritis of the back.  Thus, the Board finds that the Veteran's June 2003 statement is accepted as a timely NOD with the April 2003 rating decision on that issue.  38 C.F.R. §§ 20.201, 20.302(a) (2010).  Consequently, these matters will be remanded for the issuance of a SOC.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any outstanding VA treatment records pertaining to the service-connected left knee disabilities and the claimed right lower extremity, bilateral ulnar nerve damage, anemia, and hypertension disorders from the Tampa VAMC as well as the Lakeland CBOC, for the period from June 2009 to the present.

2.  Thereafter, the Veteran should be afforded an appropriate VA examination(s) to determine the nature and etiology of his claimed right knee, foot, and ankle disorders.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed right knee, foot, or ankle disorder was caused or aggravated by his service-connected left knee disabilities.  If the examiner determines that a there has been aggravation as a result of the Veteran's left knee disabilities, the examiner should report the baseline level of severity of the right knee, foot, and/or ankle disorder(s) prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  

In doing so, the examiner should acknowledge and discuss the findings made by the VA examiner in the February 1997 VA joints examination report, by the private physician in the September 2000 statement, and by the VA physician in the October 2010 statement as well as the Veteran's statements as to nexus and continuity of symptomatology.

The rationale for all opinions expressed should be provided in a legible report.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale.

3.  The Veteran should also be afforded an appropriate VA peripheral nerves examination to determine the nature and etiology of his claimed bilateral ulnar nerve damage.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder and a copy of this remand should be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed bilateral ulnar nerve damage was caused or aggravated by the Veteran's service-connected diabetes mellitus.  If the examiner determines that there has been aggravation as a result of the Veteran's diabetes mellitus, the examiner should report the baseline level of severity of the bilateral ulnar nerve damage prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  

In doing so, the examiner should acknowledge and discuss the findings made by the VA physician in his October 2010 statement as well as the Veteran's statements as to nexus and continuity of symptomatology.

The rationale for all opinions expressed should be provided in a legible report.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale.

4.  The Veteran should also be afforded an appropriate VA examination to determine the nature and etiology of his claimed hypertension and anemia.  All indicated tests and studies are to be performed.  Prior to the examination(s), the claims folder and a copy of this remand must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report of the examiner.

Based on a review of the claims folder, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed hypertension either began during or was otherwise caused by the Veteran's active military service, to include the presumed in-service herbicide exposure and elevated in-service blood pressure readings.

The examiner is also requested to provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that any diagnosed anemia and/or hypertension was either caused or aggravated by his service-connected diabetes mellitus.  If the examiner determines that there has been aggravation as a result of the Veteran's diabetes mellitus, the examiner should report the baseline level of severity of the anemia and/or hypertension prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  

In doing so, the examiner should acknowledge and discuss the findings made by the VA physician in his October 2010 statement and by the private physician in his November 2010 statement as well as the Veteran's statements as to nexus and continuity of symptomatology.

The rationale for all opinions expressed should be provided in a legible report.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale.

5.  The AMC should arrange for the Veteran to undergo a VA joints examination with an appropriate physician to determine the current severity of his service-connected left knee disabilities.  The claims folder and a copy of this REMAND should be made available to and reviewed by the VA examiner.  The VA examiner should note in the examination report that this has been accomplished.  

All indicated studies should be performed and all findings should be reported in detail.  The rationale for all opinions expressed should be provided in a legible report.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale.

6.  The AMC should issue to the Veteran and his representative a SOC addressing the claim of entitlement to service connection for degenerative arthritis of the back.  The Veteran is hereby informed that he must submit a timely and adequate substantive appeal as to these issues for the issues to be before the Board on appeal.

7.  After completion of the above and any additional development deemed necessary, the AMC must readjudicate the Veteran's claims on the basis of all the evidence on file and all governing legal authority.  If any benefit sought on appeal is not granted, the Veteran and his representative must be provided with a Supplemental Statement of the Case, which should include a summary of all of the evidence added to the record since the July 2003 SOC (for the matters of entitlement to a rating in excess of 10 percent prior to August 7, 2000, and in excess of 20 percent from August 7, 2000, for Osgood-Schlatter's disease of the left knee, entitlement to an initial evaluation in excess of 10 percent for left knee traumatic arthritis, entitlement to service connection for a right knee disorder (to include a secondary to service-connected left knee disabilities), and entitlement to service connection for a right foot and ankle disorder (to include a secondary to service-connected left knee disabilities)) and since the August 2009 SOC (for the matters of entitlement to service connection for bilateral ulnar nerve damage, anemia, and hypertension, to include as secondary to service-connected diabetes mellitus).  An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review.

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).

______________________________________________
MATTHEW W. BLACKWELDER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs