Citation Nr: 1301160 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-19 153 ) 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 to reopen the previously denied claim of entitlement to service connection for bilateral shin splints. 2. Entitlement to service connection for bilateral shin splints. 3. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral pes planus. 4. Entitlement to service connection for bilateral pes planus. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for left ear hearing loss. 7. Entitlement to service connection for a right leg condition. 8. Entitlement to service connection for chronic bronchitis. 9. Entitlement to service connection for sleep apnea. 10. Entitlement to service connection for degenerative disc and joint disease of the lumbar spine. 11. Entitlement to an initial rating in excess of 10 percent for the service-connected right knee strain. 12. Entitlement to an initial rating in excess of 10 percent for the service-connected left knee strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from November 1979 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and July 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of history, an August 1990 rating decision denied the Veteran's claims of entitlement to service connection for shin splints and pes planus. The Veteran did not appeal and the August 1990 rating decision became final. In April 1998 the RO denied the Veteran's petition to reopen his claims for shin splints and pes planus bilaterally; the RO continued the denial for the Veteran's shin splints in a May 1998 rating decision. The Veteran did not appeal and the April 1998 and May 1998 rating decisions became final. In February 2008 the Veteran filed a petition to reopen his claims and the January 2009 rating decision denied the Veteran's petitions. Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). In other words, the Board is required to first address whether new and material evidence has been presented before the merits of a claim can be considered. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In January 2009 the RO granted the Veteran service connection for right knee strain and left knee strain with initial noncompensable ratings. During the pendency of the appeal, an October 2010 rating decision found clear and unmistakable error in the January 2009 rating decision and granted the Veteran separate 10 percent disability ratings for the right knee strain and left knee strain. Inasmuch as ratings higher than10 percent are available, and inasmuch as a claimant is presumed to be maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified before the undersigned Veterans Law Judge in February 2012. A review of the Virtual VA paperless claims processing system reveals VA treatment records until March 2012; while these records were not reviewed by the RO the Board finds that the Veteran is not prejudiced since at the hearing he waived review by the initial RO jurisdiction. See 38 C.F.R. § 20.800. The now reopened issues of entitlement to service connection for bilateral shin splints and bilateral pes planus, as well as the issues of entitlement to service connection for left ear hearing loss, degenerative joint and disc disease of the lumbar spine, right leg condition, sleep apnea, and chronic bronchitis, as well as the issues, of higher initial ratings for the service-connected right and left knee strain are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished. 2. By way of an August 1990 rating decision, the RO denied the Veteran's claim for service connection for bilateral shin splints finding that the Veteran did not have any current symptomatology, and the Veteran's claim for service connection for bilateral pes planus because there was no evidence that it began in service or was due to trauma. The Veteran did not appeal that decision and it became final. 3. By way of the April 1998 and May 1998 rating decisions the RO failed to reopen the Veteran's claims of entitlement to service connection for bilateral shin splints and bilateral pes planus. The Veteran did not appeal those decisions and they became final. 4. The additional evidence received since the April 1998 and May 1998 rating decisions is neither cumulative nor redundant of evidence previously of record; it relates to previously unestablished facts necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claims for service connection for bilateral shin splints and bilateral pes planus. 5. The preponderance of the evidence is against the Veteran's hypertension being related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral shin splints. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. New and material evidence has been received to reopen the claim for service connection for bilateral pes planus. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Hypertension was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created and are codified as amended at 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO sent the Veteran correspondences in January 2011 and November 2011. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The January 2011 and November 2011 letters also informed the Veteran of the criteria of the applicable disability ratings and effective date elements of his claims. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim at this time. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's service treatment records, VA treatment reports, VA examinations, and statements from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. Thus, the Board finds that VA has obtained, and made reasonable efforts to obtain, all evidence that might be relevant to the issue herein decided, and that VA has satisfied the duty to assist. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2012). II. Analysis Petitions to Reopen A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision. 38 C.F.R. § 20.1104. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. In determining if new and material evidence has been received, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium); Justus v. Principi, 3 Vet. App. 510 (1992). In addition, all of the evidence received since the last final disallowance shall be considered in making the determination. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). By the way of an August 1990 rating decision the RO denied the Veteran's claim of service connection for bilateral shin splints, in part because though there was documentation of shin splints in the Veteran's service treatment records there was no evidence of current shin splints, and denied the Veteran's claim for entitlement to service connection for bilateral pes planus because it was not shown that it originated in trauma or being acquired during service. The Veteran did not file a substantive appeal and the August 1990 rating decision became final. In an April 1998 rating decision the RO denied the Veteran's petition to reopen his claims for entitlement to service connection for bilateral shin splints and bilateral pes planus; the RO continued the denial to reopen the Veteran's petition for the bilateral shin splints in the May 1998 rating decision. The Veteran did not appeal the April 1998 and May 1998 rating decisions and they became final. In February 2008 the Veteran submitted a petition to reopen his previously denied claims of entitlement to service connection for bilateral shin splints and bilateral pes planus. Since the April 1998 and May 1998 RO decisions the Veteran submitted VA treatment records and his testimony. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it may not convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board finds that the Veteran's testimony is new and material because it is relevant to establishing a current diagnosis of his bilateral shin splints, one of the reasons for the previous denial, and for discussing the nature and onset of the Veteran's bilateral pes planus, which also goes to the previous denial of service connection. Therefore, the Board concludes that evidence submitted since the April 1998 and May 1998 decisions is new and material, and thus to this extent only, the claim for service connection for bilateral shin splints and bilateral pes planus is reopened. Moreover, additional development of evidence will be undertaken (see the below remand) before the issues of entitlement to service connection for bilateral shin splints and bilateral pes planus are addressed on a de novo basis. Manio v. Derwinski, 1 Vet. App. 140 (1991). Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection will be presumed for chronic disease, including hypertension, if manifested to a compensable degree within one year after discharge from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under VA rating criteria, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1). Hypertension or isolated systolic hypertension must be confirmed by ratings two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1). After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. The Veteran's service treatment records do not include any complaints, treatment, or diagnosis of hypertension. The Veteran's October 1979 Report of Medical Examination for Entrance noted the Veteran's blood pressure reading was 112/60. Throughout service there is no evidence of a diagnosis of hypertension instead the Veteran's readings are as follows: in September 1982 it was 124/88; in November 1983 118/70 and 140/80; in August 1983 it was130/72; in March 1985 it was 154/80 for the left arm and 148/80 for the right arm; in October 1985 it was 122/82; in October 1986 it was 130/80; in July 1987 it was 118/80; in August 1987 it was 122/70; in October 1987 it was 142/84; in November 1987 it was 118/58; in March 1988 it was 138/86; and in April 1988 it was 130/70 and 132/76. Additionally, the Veteran's September 1983 Report of Medical Examination for Extension noted the Veteran's blood pressure reading was 110/72 and the Veteran's May 1988 Report of Medical Examination for Separation noted the Veteran's blood pressure reading was 120/70. Thus, the Board finds that there is no evidence of treatment, complaints, hypertensive readings as defined by VA, or diagnosis of hypertension during service. The Veteran's VA treatment records indicate normal blood pressure readings: on September 6, 2009, the Veteran's blood pressure reading was 121/71; on September 7, 2009, it was 122/63; on September 8, 2009, it was 142/78; and in August 2011 it was 127/79. The Veteran was afforded a VA examination in June 2011 and the Veteran reported that he was not diagnosed with hypertension until a year prior with the onset being in 2010; he also stated that he could not remember if he had this in the Navy or not. It was noted that during service the Veteran did have occurrences of mildly elevated blood pressure readings in November 1983, March 1985, and October 1987 with all other blood pressure readings well within the normal range. He also stated that the Veteran's weight increased significantly in service going from 160 pounds at enlistment to 220 pounds at separation with a high of 240 pounds when he was then placed on a weight loss program; the VA examiner stated that weight gain was known to cause an increase in blood pressure. He also noted that the Veteran's physical examinations in October 1979, September 1983, and May 1988 did not mention or record a hypertensive problem. He also stated that VA records show that the Veteran was not placed on hypertension medication until more recent years. He opined that it was less likely as not (less than 50/50 probability) that the Veteran's hypertension was caused by or related to his military service. After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against the Veteran's claim. First, the Board notes that there is no evidence in the Veteran's service treatment records that he sought treatment, complained, or was diagnosed with hypertension. Second, the evidence of record, including the Veteran's own statements, reveal that he was not diagnosed with hypertension until 2010, 22 years after the Veteran's discharge from military service. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). In addition, to the Veteran's lengthy period without medical complaint of hypertension, the record evidence contains only one probative medical opinion and it is against the Veteran's claim. The VA examiner noted that though the Veteran did have elevated blood pressure readings in service he had numerous blood pressure readings well within the normal limits and that the Veteran also gained a significant amount of weight during service with weight gain being a known cause of increase in blood pressure. It was further noted that the Veteran was not placed on hypertension medication until recently. This negative medical opinion is supported by a rationale, is through and detailed, and is the only probative opinion of record. In regards to the Veteran's testimony, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). First, the Veteran did not report hypertension to his medical care providers during service, at separation, or for years thereafter; additionally, the Veteran reported to the VA examiner that he was just diagnosed with hypertension the year prior. Furthermore, it is pertinent to note that the Veteran never gave his medical care providers a history of having hypertension either since service or due to service. Lay statements made when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In light of evidence as noted above, the Board has to question the credibility of the Veteran's contentions. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board finds that the Veteran's lay statements, while competent, are neither credible nor more probative, this lay evidence shows that the Veteran only reported that his hypertension was due to service after filing his claim for service connection. Furthermore, the May 1988 Report of Medical Examination reveals that he denied any other significant medical or surgical history, other than what was listed, which is in direct conflict with the Veteran's post-service statements that his hypertension began during service. As such, the Veteran's recent lay assertions lack credibility, because they are contradicted by the objective medical findings contained in the service treatment records and by the indications from the Veteran during service. Accordingly, the probative value of the Veteran's recent lay statements are of lesser value than, and outweighed by the service department records, including the 1988 service separation examination, and the opinion of the VA examiner in 2011. Therefore, the Board finds that there is no probative evidence of record that relates the Veteran's hypertension directly to his military service and the only opinion of record is against the Veteran's claim. Thus, service connection for hypertension must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER As new and material evidence to reopen the claim for service connection for bilateral shin splints has been received, the appeal to this extent is allowed subject to further action discussed herein below. As new and material evidence to reopen the claim for service connection for bilateral pes planus has been received, the appeal to this extent is allowed subject to further action discussed herein below. Service connection for hypertension is denied. REMAND After a careful review of the Veteran's claims file the Board finds that further development is warranted for the now reopened issues of entitlement to service connection for bilateral shin splints and bilateral pes planus, as well as the issues of entitlement to service connection for left ear hearing loss, degenerative joint disease of the back, right leg condition, sleep apnea, chronic bronchitis and the issues of higher initial ratings for the service-connected right knee strain and left knee strain. The Board finds that the now reopened issues of entitlement to service connection for shin splints warrants a VA examination in order to determine if the Veteran has a current diagnosis of shin splints. If the Veteran does have a current diagnosis of shin splints then the VA examiner must determine if it is at least likely as not related to his military service, including the notations in his service treatment records. For the now reopened issue of entitlement to service connection for bilateral pes planus the Board finds that a VA examination is warranted. According to the Veteran's October 1979 Report of Medical Examination for Enlistment the Veteran was found to have moderate, asymptomatic pes planus. Therefore, the Veteran entered service with a preexisting condition of pes planus. The Board notes that the Veteran's May 1988 Report of Medical Examination for Separation did not mention the Veteran's pes planus. Thus, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of the Veteran's pes planus, to include whether the Veteran's pes planus was aggravated (permanently worsened) beyond its natural progression by his military service. The Veteran testified that he currently has left ear hearing loss as the result of his military service. The Board notes that for the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. According to the Veteran's service treatment records he had audiological evaluations throughout service and on his May 1988 Report of Medical Examination for Separation his audoimetry results for his left ear were 25 decibels at 500 Hertz, 25 decibels at 1000 Hertz, 40 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 25 decibels at 4000 Hertz. However, at the Veteran's November 2008 VA examination his hearing for the left ear was within normal limits; his audoimetry results for his left ear were 15 decibels at 500 Hertz, 10 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 20 decibels at 3000 Hertz, and 20 decibels at 4000 Hertz. Therefore, the Board finds that the Veteran should be scheduled for a new VA audiology examination to determine if he currently has left ear hearing loss under 38 C.F.R. § 3.385. The Veteran was afforded a VA examination for his degenerative joint and disc disease of the lumbar spine in October 2008 and the Veteran denied any post-service injury to his back; however, the Veteran testified that he was in a post-service accident. The VA examiner stated that the Veteran is likely to have low back strain and he cannot relate any other findings or problems without resorting to mere speculation based on the available information. The Board finds that in light of the Veteran's testimony that he had a post-service motor vehicle accident the Veteran should be afforded a new VA examination to determine the current nature and etiology of the Veteran's degenerative joint and disc disease of the lumbar spine. The Board also finds that the Veteran has not been afforded VA examinations for his claims of entitlement to service connection for a right leg condition, sleep apnea, and chronic bronchitis. An examination should be obtained when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service or service-connected disability, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Veteran should be afforded VA examinations for his right leg condition, sleep apnea, and chronic bronchitis to determine if they are at least likely as not related to his military service. The Veteran was afforded a VA examination for his service-connected right knee strain and left knee strain in October 2008; the Veteran testified that his knees have increased in severity since his last VA examination. When the available evidence is too old for an evaluation of the claimant's current condition VA's duty to assist includes providing him with a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, the Board finds that the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected right knee strain and left knee strain. Prior to any VA examination, attempts should be made to obtain any outstanding records of pertinent medical treatment. The Board notes that the Veteran's VA treatment records, including the records in the Virtual VA paperless claims processing system, seem to be incomplete for the periods of April 15, 1998, to October 31, 2008, and September 16, 2009, to August 3, 2011. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran by letter and request that he provide sufficient information, and if necessary authorization, to enable the RO to obtain any additional pertinent treatment records not currently of record. Based on the Veteran's response, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe the further action to be taken. 2. Obtain and associate with the claims file all updated VA and private treatment records; including but not exclusively, VA treatment records from April 15, 1998, to October 31, 2008, and September 16, 2009, to August 3, 2011. 3. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his bilateral shin splints. The entire claims file must be made available to the examiner for review. The examiner should discuss the Veteran's medical history and any assertions regarding whether his condition is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should answer all of the following questions: A) Does the Veteran have a current diagnosis of bilateral shin splints? B) If the Veteran has a current diagnosis of shin splints, is it at least likely as not (50 percent or greater probability) related to any aspect of the Veteran's military service? In rendering his/her opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 4. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of the Veteran's bilateral pes planus. The entire claims file must be made available to the examiner and the examination report should include discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should opine to all of the following questions: A) Does the Veteran have a current diagnosis of bilateral pes planus? B) If the Veteran has a current diagnosis of bilateral pes planus, the VA examiner should determine if it is at least as likely as not (50 percent probability or greater) that such condition had its onset in or is otherwise due to the Veteran's military service. C) Does the evidence show that that the Veteran had bilateral pes planus prior to entering his active duty military service? 1. If so, did the bilateral pes planus grow more severe during his active duty service? 2. If so, was the bilateral pes planus aggravated (permanently worsened) beyond its natural progression by his military service? The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. 5. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his left ear hearing loss. The entire claims file must be made available to the examiner for review. The examiner should discuss the Veteran's medical history and any assertions regarding whether his condition is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should answer all of the following questions: A) Does the Veteran have a current diagnosis of left ear hearing loss for VA standards under 38 C.F.R. § 3.385? B) If the Veteran has a current diagnosis of left ear hearing loss, is it at least likely as not (50 percent or greater probability) related to any aspect of the Veteran's military service? C) If the Veteran does not have a current diagnosis of left ear hearing loss, then the VA examiner must discuss the significance of the Veteran's in-service audiological evaluations, including his May 1988 Report of Medical Examination for Separation which demonstrated elevated findings. In rendering his/her opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 6. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his degenerative joint and disc disease of the lumbar spine. The entire claims file must be made available to the examiner for review. The examiner should discuss the Veteran's medical history and any assertions regarding whether his condition is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should answer all of the following questions: A) Does the Veteran have a current diagnosis of a lumbar spine condition? B) For each diagnosed lumbar condition, is it at least likely as not (50 percent or greater probability) related to any aspect of the Veteran's military service? The VA examiner must discuss the significance of the Veteran's post-service motor vehicle accident. In rendering his/her opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 7. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his sleep apnea and chronic bronchitis. The entire claims file must be made available to the examiner for review. The examiner should discuss the Veteran's medical history and any assertions regarding whether his condition is due to service. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should answer all of the following questions: A) Does the Veteran have a current diagnoses of sleep apnea and/or chronic bronchitis? B) If the Veteran has a current diagnosis of sleep apnea and/or chronic bronchitis, is it at least likely as not (50 percent or greater probability) related to any aspect of the Veteran's military service? In rendering his/her opinion, the VA examiner should discuss all opinions of record. A full and complete rationale for all opinions expressed is required. 8. The Veteran should be scheduled for a VA examination to ascertain the nature and likely etiology of his right leg condition. The entire claims file must be made available to the examiner for review. The examiner should record and discuss the Veteran's medical history and any assertions regarding whether his condition is due to an in-service event. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should answer all of the following questions: A) Does the Veteran have a current diagnosis of a right leg condition? B) For each diagnosed right leg condition, is it at least likely as not (50 percent or greater probability) related to any aspect of the Veteran's military service, to include his service-connected right knee disability? In rendering his/her opinion, the VA examiner should discuss the significance of all opinions of record. A full and complete rationale for all opinions expressed is required. 9. The Veteran should be scheduled for a VA examination to determine the current nature and severity of his right knee strain and left knee strain. The claims file must be made available to the examiner, and the examiner should include in the examination report discussion of the Veteran's medical history and assertions. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The VA examiner should discuss the current nature and severity of the Veteran's right knee strain AND left knee strain. The VA examiner should discuss both the right knee disability and left knee disability in terms of the applicable rating criteria discuss the following: * the Veteran's range of motion, to include a measurement of where pain begins; * any limitations of his range of motion based on pain, weakness, fatigability, or incoordination; * any instability that the Veteran experiences. The VA examiner should also discuss the effect the Veteran's right knee strain and left knee strain has on his employment and his activities of daily living. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. The examiner's findings must be stated in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 10. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the remaining claims on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs