Citation Nr: 1237275 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-20 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a head disability due to injury. 2. Entitlement to service connection for a right ear disability. 3. Entitlement to service connection for a disability manifested by blurred vision and an inability to walk. 4. Entitlement to service connection for arthritis other than degenerative joint disease of the right knee. 5. Entitlement to a temporary total disability rating based on the need for convalescence for right ear surgery. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at law ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from April 1943 to December 1945. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that the instant matters have been the subject of prior Board remands. The case was most recently before the Board in September 2011, at which time the matters were remanded for further development. Among other things, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine whether he has rheumatoid arthritis and, if so, to identify the affected joints. In that decision, the Board also denied service connection for a right knee disability upon finding that although the evidence showed marked degenerative changes in the right knee, there was no indication that right knee arthritis manifested to a compensable degree within one year of service or that the Veteran's right knee disability was caused or made worse by service-connected pes planus. On remand from the Board, the Veteran was afforded a VA examination in connection with his claim of service connection for rheumatoid arthritis in October 2011. As will be discussed in further detail below, the VA examiner noted the presence of osteoarthritis, but found no evidence of rheumatoid arthritis. At the outset, the Board notes that in initially applying for VA disability compensation, the Veteran sought service connection specifically for rheumatoid arthritis. A review of the Veteran's VA treatment records shows general references to arthritis and a specific notation of rheumatoid arthritis. In light of the Veteran's VA treatment records and the October 2011 VA examiner's opinion, the Board has re-characterized the Veteran's claim as one for service connection for any arthritis, as indicated on the title page of this decision. This is so because VA is responsible for considering alternate current conditions within the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim"). However, the Board has specifically excluded from the issue on appeal the Veteran's right knee degenerative joint disease. Service connection for that disability was denied by the Board in its September 2011 decision. (It should also be noted that the claim of service connection for the right ear does not contemplate hearing loss or tinnitus because the Veteran is already service connected for these disabilities. References in the decision and order below to the right ear should be taken to mean any right ear disability other than hearing loss and tinnitus.) This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). (The decision below addressed the Veteran's claims of service connection for disabilities of the head and right ear, and the claim of entitlement to a temporary total rating. The Veteran's remaining claims are addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran does not have a currently diagnosed disability of the head. 2. The Veteran does not have a currently diagnosed right ear disability other than hearing loss and tinnitus for which he is already service connected. 3. The Veteran underwent a mastoidectomy for treatment of chronic mastoiditis and otitis media in November 1993. He is not service connected for any disability necessitating that surgery. CONCLUSIONS OF LAW 1. The Veteran does not have a disability of the head that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The Veteran does not have a right ear disability for which he is not already service connected or that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for the assignment of a temporary total disability rating following surgery in November 1993 have not been met. 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO received the Veteran's claim of service connection for right ear and head disabilities in August 2008. That same month, the RO sent him a letter notifying him of the evidence required to substantiate those claims. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The letter also included the notice elements required by Dingess for how VA determines disability ratings and effective dates. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the August 2008 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his service connection claims. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. As to the issue of entitlement to a temporary total rating, because such a rating must be denied as a matter of law, any notice error is meaningless. Regarding the duty to assist, the Board also finds that VA has fulfilled its obligation to assist the Veteran. All available evidence pertaining to the Veteran's claims has been obtained. The evidence includes his service treatment records (STRs), post-service VA treatment records, private medical records, VA examination reports, and lay statements in support of his claims. Neither the Veteran nor his attorney has identified any outstanding potentially obtainable records and the Board is aware of none. Thus, VA has properly assisted the Veteran in obtaining any relevant evidence. Further, in compliance with the Board's earlier remand, the Veteran was afforded a VA examination in October 2011 in connection with his claim of service connection for a disability affecting the head. The examiner reviewed the claims folder and conducted a thorough interview of the Veteran. (The Board notes that physical examination of the Veteran was determined to be unnecessary by the VA examiner and that the Board's prior remand indicated that if the Veteran was too debilitated to undergo physical examination, the VA examiner was to answer the questions posed based on a review the evidence in the claims file.) The examiner recorded the Veteran's subjective complaints related to his disability, considered his report of an in-service head injury, and reviewed the medical evidence of record. The examiner also provided answers to the questions posed by the Board in its September 2011 remand. The examination report contains sufficient evidence by which to evaluate the Veteran's claim of service connection for a disability of the head. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination. The Board has also considered whether a VA examination was required in connection with the Veteran's claim of service connection for a right ear disability under the duty-to-assist provisions codified at 38 U.S.C.A § 5103A(d) and by regulation found at 38 C.F.R. § 3.159(c)(4). In accordance with those provisions, a medical opinion or examination is required if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The evidence of record is such that the duty to obtain a medical examination was not triggered in connection with this claim. As will be discussed in further detail below, there is no evidence that the Veteran has a currently diagnosed right ear disability. There is also no evidence that the Veteran currently experiences persistent or recurrent symptoms of a right ear disability. Accordingly, the Board finds that there is no credible evidence of continuity of symptomatology so as to warrant medical examinations in connection with the Veteran's claims of service connection for a right ear disability. See McLendon, 20 Vet. App. at 83 (holding that "credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation" may indicate that a current disability "may be associated" with military service). Thus, there is no requirement to obtain a VA medical examination in connection with the Veteran's claim of service connection for a right ear disability. See McLendon, 20 Vet. App. at 85-86; see also Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination under the standard of [38 U.S.C.A. § 5103A(d)(2)(B)]"). II. Analysis The law provides that 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Alternatively, the second and third elements of service connection can be demonstrated through continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the instant case, the Veteran is seeking service for disabilities that he alleges are the result of a head injury sustained in service. Specifically, the Veteran alleges that during his period of basic military training, he raised his head while digging foxholes during an exercise, at which time the bottom of a tank struck his helmet. In an August 2008 statement wherein the Veteran indicated his desire to seek service connection for disabilities alleged to have resulted from this incident, the Veteran reported that the "tank just barely tapped [his] helmet" and that "years later effects took place." The Veteran stated that, sometime after the incident, he woke up one morning and was not able to stand or walk, which has since happened on three or four occasions. He also reported that his eyes would sometimes get blurry and that while undergoing mastoid surgery, it was discovered that he had "a tear in the brain." When requested to clarify what specifically he was seeking to establish service connection for, the Veteran stated that he was claiming service connection for a head injury, a right ear injury that had necessitated surgery, and blurred vision/red eyes, as well as an inability to stand/walk, as a result of the reported in-service head injury. At the outset, the Board notes that having an injury or disease occur in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In the instant case, although the Veteran's STRs do not reference a head injury from a collision with a tank or any type of diagnosed disability pertaining to the head (other than warts on the head), as a lay person the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, the appellant is competent to provide information regarding visible, or otherwise observable, symptoms of disability"). Regardless, however, of whether the Veteran indeed sustained a head injury in service as described, for service connection to now be established, the evidence must show a current disability related to the in-service injury. In this regard, the Board notes that a "current disability" includes a disability present at the time of filing or during the pendency of a claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In September 2011, the Board remanded the issue of entitlement to service connection for a disability due to a head injury for the Veteran to be provided with a VA examination to determine whether in fact that Veteran had any disability of the head and, if so, the likelihood that any such disability affecting the head was related to the Veteran's active military service, particularly his stated in-service collision with a tank. In October 2011, the Veteran underwent VA examinations for traumatic brain injury, neurological disorders, and mental disorders. Notably, the Veteran was not diagnosed as having a traumatic brain injury. In reviewing the evidence of record and interviewing the Veteran, the examiner noted that in 1993, the Veteran was seen by an Ear, Nose, and Throat specialist and underwent surgery to repair a right ear mastoid problem. During the surgery, the Veteran was determined to have a cerebrospinal fluid (CSF) leak. The examiner indicated that many times, a CSF leak is caused by a head injury, but stated that if the CSF leak were truly the result of the Veteran's in-service head injury, one would have expected the issue to have been more long-standing and continuous and slowly worsening, with more complications and much more severe. The neuropsychological evaluation showed that the Veteran was an individual of average intelligence. The examiner stated that, given the Veteran's advanced age, he seemed to be doing extremely well for an individual with numerous and significant physical problems. The examiner noted some mild difficulties in perceptional organization and perceptional motor speed, but indicated that, based on the evaluation there was no evidence to support a conclusion that the Veteran suffered a significant and permanent brain injury as a result of his reported in-service injury. The Veteran's mental examination similarly failed to reveal any evidence of a disability affecting the head. The Board has also reviewed the Veteran's VA and private treatment records. However, nothing in the Veteran's medical records suggests that he has, at any point since filing his claim, been diagnosed as having any specific disability affecting the head. Nor do the records contain an indication that the Veteran is suffering from symptoms suggestive of a disability affecting the head. Notably, the Veteran's VA treatment records specifically state that the Veteran has had no signs of a stroke. The Board notes that Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. As such, an essential element of a service connection claim is the establishment of a current disability. The evidence reflects that the Veteran does not have a diagnosed disability affecting his head. While it is true that the Veteran was shown to have a CSF leak in 1993, the operative report of his November 1993 mastoidectomy shows that steps were taken to repair the dura and that the leakage at that point had ceased. Thus, even if it was shown that the Veteran's CSF leak was somehow the result of his reported in-service injury, because there is simply no evidence to suggest that the Veteran sustained some type of permanent disability from the CSF leak, which occurred years prior to the filing of his current claim, there is no basis upon which a finding of service connection for a disability of the head can be made. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability there can be no valid claim."). In concluding that the evidence fails to show that the Veteran has a current disability of the head, the Board is cognizant of the fact that lay evidence may be sufficient to establish a current diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (describing situations when lay evidence can be competent and sufficient to provide medical diagnosis). Here, the Veteran has not provided lay evidence of a current diagnosis. Rather, he has asserted only his belief that his CSF leak was the result of his reported in-service head trauma. However, as discussed above, the CSF leak was repaired during the 1993 surgery and there is no evidence of a resulting disability. As such, the Veteran has presented no lay evidence of a current disability. The Board also finds that there is no evidence of a current right ear disability (other than hearing loss and tinnitus for which the Veteran is already service connected). In this regard, it appears that the Veteran is seeking service connection for the ear conditions that led to his November 1993 mastoidectomy. While treatment records show the Veteran's complaints of frequent drainage from the right ear prior to the 1993 surgery, that he had had a tube in the right ear, which had been removed two-and-a-half or three years prior to that time, and that he had had diagnoses chronic mastoiditis and otitis media, there is no evidence to suggest that the Veteran's chronic mastoiditis or otitis media was the result of his reported in-service head trauma or that he now has any residual disability as a result of those conditions. The Veteran's STRs are silent for complaints of right ear problems in service and the first indication of right ear problems is not for more than 40 years after service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability that still exists currently). Further, the clinical summary of the November 1993 mastoidectomy indicates that "everything went well" with the surgery and none of the private or VA treatment records dated after that date suggests that the Veteran incurred some type of residual ear disability of the right ear. Moreover, neither the Veteran, nor his attorney, has identified any specific disability, or symptoms of a disability, of the right ear for which the Veteran is seeking service connection. Rather, it has been generically stated that the Veteran is seeking service connection for a "right ear injury." However, as noted above, having an injury or disease in service is not enough; there must be a chronic disability resulting from that injury or disease. Accordingly, regardless of whether the Veteran sustained some type of injury or disability to his right ear as a result of the reported in-service head trauma, without a showing that the Veteran has a current disability of the right ear, other than those for which he is already service connected, service connection may not be granted. See Brammer, supra. The Board also notes that the Veteran has not been afforded a VA medical examination in connection with his claim for service connection for a right ear disability. However, as discussed in greater detail above, because the Veteran has proffered no evidence of a current disability of the right ear, or indicated any current right ear symptomatology, a VA examination is not warranted in this case. Id. Thus, in the absence of proof of currently diagnosed disability, the Board finds that service connection for a right ear disability may not be granted. See id. The Veteran is also seeking a temporary total disability rating based on the need for convalescence following right ear surgery. A temporary total disability rating will be assigned if treatment of a service-connected disability resulted in: (1) Surgery (including outpatient surgery after March 1, 1989) necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2012). As set forth above, service connection is not in effect for a right ear disability, to include chronic mastoiditis and otitis media for which the Veteran underwent surgery in 1993; thus, a temporary total rating following surgery for those disabilities in November 1993 is not warranted. Because those disabilities are not service connected and temporary total ratings are only available for service-connected conditions, an award may not be made. Absent an award of service connection for any disability of the right ear that necessitated the 1993 surgery, the sought after temporary total disability rating may not be granted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). ORDER Service connection for a disability of the head is denied. Service connection for a right ear disability is denied. A temporary total disability evaluation due to surgical convalescence following surgery in November 1993 is denied. REMAND In September 2011, the Board remanded the Veteran's claim of service connection for rheumatoid arthritis for the AOJ to obtain a VA medical examination and/or opinion that addressed whether the Veteran's bilateral pes planus had caused or made chronically worse any rheumatoid arthritis. The Board noted that the claim was previously remanded in September 2010 for the same purpose but that a November 2010 examination was inadequate on account of the fact that the examiner had stated that the Veteran had not been diagnosed with rheumatoid arthritis. The Board pointed out that although there was a dearth of information regarding any rheumatoid arthritis the Veteran may have, a February 2010 VA treatment record contained an assessment of rheumatoid arthritis of the hands, hips, and knees. Thus, the claim was again remanded for the September 2010 remand directives to be carried out. The Veteran underwent a VA examination in October 2011. The examiner indicated his review of the claims folder and interview of the Veteran. The examiner then stated: "Based on a review of every document that this examiner could find, I could not find any mention/diagnosis of specific rheumatoid arthritis anywhere in [the Veteran's] medical records." The examiner did note that the Veteran suffered from osteoarthritis, but indicated that he could not find any specific comments, investigations, specialty visits, or rheumatologic workups for rheumatoid arthritis. The examiner thus stated that rendering the requested medical opinion was a moot point. The Court has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated, additionally, that, if the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. As pointed out by the Board in its prior remands, a VA treatment record dated in February 2010 contains an assessment of rheumatoid arthritis of the hands, hips, and knees. That record is labeled and located in volume V of the Veteran's claims folder. In view of this evidence, the claim must again be remanded in order for a VA examiner/reviewer to consider the information and provide an opinion in response to the question that was asked in the September 2010 remand. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one); Stegall, supra. If on remand, the examiner/reviewer determines that the February 2010 assessment of rheumatoid arthritis is not supported by the other evidence of record, the examiner should so state and provide specific reasons for that opinion. The Board also finds it necessary to remand the Veteran's claim of service connection for a disability manifested by blurred vision and an inability to walk. In that regard, the Board notes that the Veteran has not been afforded a VA examination in connection with the claim. As noted above, as a lay person the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as symptoms or events experienced during service. The Veteran maintains that he has a disability manifested by eye symptoms and an intermittent inability to walk as a result of his reported in-service head trauma. Specifically, the Veteran has complained of blurred vision, red eyes, eye "flashes," and a burning sensation. While the Veteran first maintained that the effects of that in-service injury took place "years later," shortly after filing his claim, he indicated having experienced eye problems since service. The Board does, however, note that a September 2011 VA treatment record records the Veteran's complains of blurred vision after reading for a long period, made better by blinking. No other eye symptoms were complained of at that time. Despite the fact that the evidence does not affirmatively establish a continuity of symptoms since service, the Board finds that, based on the Veteran's statements and arguments raised by his attorney, the "low threshold" necessary to establish entitlement to a VA medical examination has been satisfied. See McLendon, 20 Vet. App. at 83 (stating that "[t]he types of evidence that 'indicate' that a current disability 'may be associated' with military service include . . . credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation"). Accordingly, the Board finds that the claim of service connection for a disability manifested by blurred vision and an inability to walk must be remanded for VA medical examination and opinion to determine whether or not there is a diagnosis of any disability that would account for the Veteran's reported eye symptoms and inability to walk and, if so, whether any such disability is at least as likely as not attributable to the Veteran's period of service. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Mail recently sent to the Veteran was returned to the Board as undeliverable. On remand, the AOJ should ascertain the Veteran's current address, to include requesting any such information from his attorney. 2. The AOJ then should contact the VA examiner who examined the Veteran in October 2011 in connection with his claim of service connection for arthritis and obtain from him an addendum to his examination report that addresses the specific notation of rheumatoid arthritis in a February 2010 VA treatment record, which is marked in volume V of the Veteran's claims folder. The examiner/reviewer must determine whether the Veteran in fact has rheumatoid arthritis and, if so, identify the affected joints. If the examiner/reviewer determines that the February 2010 assessment of rheumatoid arthritis is not supported by the other evidence of record, the examiner should so state and provide specific reasons for that opinion. The examiner should provide an opinion, based on a thorough review of the evidence of record, as to the medical probabilities that the Veteran has any form of arthritis in any joint other than the right knee that was caused or made chronically worse by his service-connected bilateral pes planus. If the examiner finds that bilateral pes planus has an effect on the Veteran's arthritis, the examiner should comment on when the onset of "aggravation" took place and whether the claims file contains sufficient medical evidence created before the onset of aggravation to establish a baseline of the level of severity of any such disability. If a baseline is established, the examiner should comment on how much the arthritis has worsened in severity as a result of the natural progress of those disabilities, if at all, from the time of the baseline to the current level of severity. Regardless of whether the examiner's opinion is favorable or negative as to any question, the examiner must provide support for her opinions that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming her opinion. Medical reasons to accept or reject the Veteran's assertion that his arthritis has been aggravated by his pes planus should be set forth. (If the October 2011 examiner is no longer available, or if that examiner or the AOJ finds that a new examination is necessary, the Veteran should be scheduled for a VA examination. The examiner should also be asked to answer the questions posed in the preceding paragraphs. If the Veteran is too debilitated to undergo physical examination, or does not appear, the prospective examiner should instead attempt to answer the questions above based on an interview with the Veteran and/or review the evidence in the claims file.) 3. The AOJ should arrange for the Veteran to be scheduled for a VA examination in connection with his claim of service connection for a disability manifested by blurred vision and an inability to walk. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All studies, tests and evaluations should be performed as deemed necessary by the examiner. The results of any testing must be included in the examination report. The examiner should elicit a detailed history from the Veteran with regard the onset, duration, and nature of any eye symptoms and problems related to the Veteran's mobility that he believes are related to his military service. The examiner/reviewer should then provide an opinion as to whether the Veteran suffers from a specific disability that results in his complained-of symptoms, to specifically include blurry vision and an inability to walk. The examiner should then opine as to whether any current disability manifested by the Veteran's complained-of eye symptoms and problems with mobility is at least as likely as not related to his period of military service. If an examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) (If the Veteran is too debilitated to undergo physical examination, or does not appear for the examination, the prospective examiner should instead attempt to answer the questions above based on a review the evidence in the claims file.) 4. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues of entitlement to service connection for arthritis other than arthritis of the right knee, and for a disability manifested by blurred vision and an inability to walk. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished an SSOC and afforded the appropriate time period for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs