Citation Nr: 1301516 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-13 292 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to a rating in excess of 30 percent for chondromalacia patella of the left knee. 2. Entitlement to a rating in excess of 10 percent for arthritis of the left hip. 3. Entitlement to a rating in excess of 10 percent for right great toe hallux valgus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The Veteran had active duty service from February 1974 to May 1986. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2006 rating decision in which the RO, inter alia, denied the claims for increased ratings for the service-connected left knee, left hip and right great toe disabilities. In January 2007, the Veteran filed a notice of disagreement (NOD) with respect to all the claims. A statement of the case (SOC) was issued in February 2008, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in March 2008. In April 2010, the RO granted an increased, 20 percent rating for right great toe hallux valgus, effective September 14, 2005 (the date of receipt of the current increased rating claims). Although the RO has granted a higher rating for the service-connected right great toe disability during the pendency of this appeal, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for higher rating remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2010, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. The Veteran requested a Board hearing before a Veterans Law Judge. A May 2, 2011 letter informed the Veteran that his hearing was scheduled in May 2011. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board's decision on the claims for higher rating for the service-connected right great toe hallux valgus is set forth below. The claims for increased ratings for the service-connected left hip and left knee disabilities are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished 2. Pertinent to the September 2005 claim for increase, the service-connected right great toe hallux valgus has been manifested by some limitation of motion, and subjective complaints of pain, to include during flare-ups (although foot pain has been medically attributed to nonservice-connected diabetes). CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right great toe hallux are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, Diagnostic Codes 5280, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claims, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO's October 2006 decision). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in March 2006 and September 2006 pre-rating letters, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for an increased rating for the right great toe disability, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; the March 2006 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The October 2006 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the March 2006 and September 2006 pre-rating letters -which meet the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of VA examinations. Also of record and considered in connection with the appeal is various written statements provided by the Veteran and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the right foot claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claim adjudicated by this decision, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the foot claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Factual Background In September 2005, the Veteran filed a claim for, among other things, an increased rating for hallux valgus of the right great toe. Initially, the Board notes that service connection is only in effect for a right great toe injury. Service connection is not in effect of diabetes mellitus or any residuals of diabetes mellitus. In February 2006, it was noted the Veteran had neuropathy which he evaluated as an 8 out of 10. A clinical record dated in September 2006 includes the annotation that the Veteran complained of right knee pain. He informed the clinician that he had been jumping rope on his toes to get ready for some type of competition. On VA examination in October 2006, the Veteran reported that he experienced pain, soreness and tenderness in his right foot. Prolonged standing and walking and repetitive use bothered and irritated the disability. The Veteran occasionally used some shoe inserts which helped. Physical examination revealed tenderness, soreness, and pain to palpation over the great toe but no other edema, weakness, or instability was noted. There was no evidence of any abnormal weight bearing. Repetitive use testing was productive of an increase in aches and pain, soreness, tenderness and fatigability. No change was observed during the office examination after repetitive testing. The examiner opined that any other change in the range of motion was speculative. The diagnosis was hallux valgus of the right great toe with arthritis. In October 2006, it was noted the Veteran was on crutches due to his right knee pain. There was no mention of problems with the right great toe. In January 2007 the Veteran presented to a podiatrist with complaints of burning in the right foot. He also reported right knee pain. He informed the clinician that it felt like he was walking on a rock on the bottom of his right foot. Physical examination revealed less than 45 degrees of dorsiflexion in the right first metacarpophalangeal joint. The assessments were bunion and fat pad atrophy. Diabetes mellitus with neuropathy was also assessed. In March 2007, it was reported that the Veteran was working out 8 hours per day to compete in body building competitions. In June 2007, the Veteran presented for foot care. He reported he had been working out twice per day and that he had a throbbing pain in the right foot. The pertinent assessment was diabetes mellitus with neuropathy. In October 2007, the Veteran complained of burning in the right foot. The pertinent assessment was diabetes mellitus with neuropathy. In January 2008, the Veteran reported that he had swelling in his foot. The assessment was that the Veteran had mycotic nails and edema of an uncertain origin. Another record dated the same month includes the annotation that the edema was most likely due to Naprosyn. In May 2008, the Veteran presented with a complaint of a nodule on the right great toe near the proximal interphalangeal joint. He informed the clinician that he thought it was a blister. He denied pain at the site but occasionally would experience a shooting pain there. Physical examination revealed limited dorsiflexion at the first metacarpophalangeal joint. No pain was pressure was noted. The pertinent assessment was nodule. A June 2008 X-ray of the right foot was interpreted as revealing stable hallux valgus deformity. An August 2008 VA clinical record indicates that the Veteran presented with complaints of burning in the feet. Physical examination revealed prominent hallux in abducted and valgus rotation with limitation of dorsiflexion at the right great toe. The assessment was bunion and neuropathy. In February 2009, the Veteran complained of burning in the right foot. The pertinent assessment was neuropathy. On VA examination in November 2009, the Veteran complained of right foot pain and pain in all the toes. He reported a sensation like a throbbing shock at the base of the right hallux and a soreness which affected the rest of the toes. He reported he had peripheral neuropathy which affected his hands and foot as well but this was a different type of pain from the stabbing pain he felt in the hallux. The Veteran reported pain, swelling, heat, stiffness and lack of endurance. Pain was in the tip of the great toe. Flares of pain occurred weekly or more often and the duration was one to two days. During flares the Veteran reported he was more severely limited in his activities and was unable to be on the foot. He was able to stand for 15-30 minutes and able to walk 1/4 of a mile. Physical examination revealed no evidence of painful motion, swelling, tenderness, instability or weakness. There was evidence of abnormal weight bearing and the Veteran was unable to feel monofilament testing on any point of his foot. There was 40 degrees of angulation, distal interphalangeal movement was from 0 to40 degrees on plantar flexion; neutral extension, proximal interphalangeal movement was from 0 to 30 degrees of plantar flexion and neutral extension. There was atrophy of the foot muscle. An X-ray was interpreted as revealing moderate hallux valgus. The diagnosis was right foot hallux valgus. The Veteran was not employed. The examiner opined the disability would have mild effects on the Veteran's shopping, exercise, traveling, bathing and dressing. It would have no effect on the Veteran's recreation, feeding, toileting, grooming and driving. The Veteran had been unemployed for five to ten years due to multiple medical problems including diabetes and amputation. III. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The RO assigned the current 20 percent rating for the right great toe hallux valgus under Diagnostic Code 5284 which provides the rating criteria for evaluation of other food disabilities. Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot disability, a 20 percent rating is assigned for moderately severe foot disability, and the maximum, 30 percent rating is assigned for severe foot disability. With actual loss of use of the foot, a 40 percent rating is assigned. See 38 C.F.R. § 4.71a, at Diagnostic Code 5284, Note. The Board points out that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which a claimant experiences additional functional loss due to pain, weakness, excess fatigability, or in coordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. (1996). Considering the pertinent evidence in light of the above, the Board finds that a rating in excess of 20 percent is not warranted for the service-connected right great toe hallux valgus under any applicable criteria. The medical evidence demonstrates that the service-connected right great toe disability is manifested by subjective complaints of pain and allegations of limitations of walking and standing. There is objective evidence of tenderness and some limitation of motion. Significantly, the Board finds this symptomatology indicates, at most, a moderate foot disability under Diagnostic ode 5284; it does not rise to a level of a severe foot disability. As indicated above, the majority of the clinical records which address the Veteran's complaints of problems with the right foot attribute the Veteran's complaints to diabetic neuropathy for which service connection is not in effect. The only quantification by a health care professional as to the extent of symptomatology associated solely with the service-connected right great toe disability is included in the report of the November 2009 VA examination. That examiner who conducted the November 2009 VA examination specifically opined that the effects of the service-connected right great toe disability would be mild, at the most. The Board places great probative weight on this determination. The examiner had access to and examined the Veteran as well as the medical evidence in the claims file. His opinion as to the extent of the symptomatology was based on his medical experience and the physical examination. The medical evidence of record is negative for any evidence that the symptomatology associated with the service-connected hallux valgus of the right great toe is more than moderately severe, even at the greatest level of impairment when taking into account pain on use or during flares. At the time of the most recent VA examination in November 2009, the Veteran alleged that he experiences flares of right great toe pain during which he was unable to be on the foot. The flares purportedly occurred every two to three weeks with a duration of one to two days. Other than this single reference, the claims file is completely devoid of any evidence that the service-connected right great toe is productive of any significant impairment, such as an inability to use the foot. Despite the fact that the Veteran's right foot was examined numerous times by health care professionals during the appeal period, the Veteran never informed any other health care professionals of this extreme symptomatology nor is it alluded to anywhere else. The Board finds that, if the symptomatology associated with the service-connected right great toe was as extreme as the Veteran alleged during flares, there would have been a mention of this symptomatology somewhere in the medical evidence. While the Veteran is competent to report on symptomatology he experiences, the Board must also evaluate his credibility. Given the lack of any other evidence indicating that the Veteran has had an inability to use his foot during flares of pain, or even any medical evidence documenting that he experiences flares of pain, the Board questions the credibility of the Veteran's assertions of frequent flare ups of pain and loss of use. The Board simply does not believe that, if the Veteran was unable to use his foot during flares of pain and, if these flares of pain occurred every two to three weeks as alleged by the Veteran at the time of the November 2009 VA examination, he would not have informed any other health care professional, at any time, that he experienced such significant symptomatology. The Board further notes that, while the Veteran is competent to report on pain he experiences, he is not competent to provide an opinion as to source of the pain as service-connected hallux valgus of the right great toe or due to nonservice connected diabetes mellitus neuropathy. Here, most of the medical providers who recorded the Veteran's complaints of right foot pain attributed the pain to neuropathy associated with nonservice-connected diabetes mellitus neuropathy. There is no competent evidence of record indicating that the service-connected disability is productive of pes planus (flat feet) so an increased rating is not warranted under Diagnostic Code 5276. Further, as regards other potentially applicable diagnostic codes pertaining to the feet, the Board finds that Diagnostic Code 5277 (bilateral weak foot); Diagnostic Code 5278 (claw foot); Diagnostic Code 5281 (hallux rigidus); Diagnostic Code 5282 (hammer toe); and Diagnostic Code 5283 (malunion or nonunion of the metatarsal bones) are inapplicable here as the record does not demonstrate that the Veteran's service-connected right great toe disability is manifested by any noted impairment, nor is the symptomatology analogous thereto. Diagnostic Code 5280 provides that a 10 percent rating is warranted if the hallux valgus was operated on with resection of the metatarsal head. This is not applicable in the current case as the surgical procedure has not been performed. Diagnostic Code 5280 also provided for a 10 percent evaluation when there is severe hallux valgus which is equivalent to a great toe amputation. In the current case, the medical evidence demonstrates that the symptomatology associated with the service-connected hallux valgus of the right great toe does not rise to a level which equates with amputation of the great toe. No health care professional is on record as indicating that such is the case. The Veteran has not alleged such symptomatology. The above-noted determinations are based upon consideration of applicable provisions of VA's rating schedule. The Board also finds that, at no point pertinent to this appeal has the disability under consideration been shown to be so exceptional or unusual as to warrant a higher rating on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that schedular criteria is adequate to rate the disability under consideration. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the right great toe disability, pursuant to Hart, and that the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 10 percent for right great toe hallux valgus is denied. REMAND The Board's review of the clams file reveals that further RO action on the claims remaining on appeal is warranted. Regarding the left knee disability, the most recent VA examination for compensation and pension purposes was conducted in November 2009. Unfortunately the examination report contains conflicting evidence regarding the extent of symptomatology associated with the service-connected left knee disability. Physical examination was conducted and range of motion testing was performed. At that time, the examiner found that the range of motion for extension of the left knee was limited to 25 degrees. All the medical evidence dated prior to this time demonstrates a much smaller level of impairment for extension of the knee. The only medical record which addresses the range of motion of the knee subsequent to November 2009 is dated in January 2010, and this record includes the annotation that the range of motion of the Veteran's knee was normal. No clinical records pertinent to the knee dated after January 2010 have been associated with the claims file. The most recent medical records associated with the claims file are dated in March 2010. It is not apparent to the Board if the severe limitation of extension noted at the time of the November 2009 VA examination was an anomaly as suggested by the medical evidence dated prior November 2009 and the single record promulgated in January 2010, or if the severe limitation of motion has been present from November 2009 to the present with the January 2010 clinical record being an anomaly. In order to accurately rate evaluate this disability, claim, the Board finds that the medical records generated from 2010 forward pertaining to the Veteran's right knee should be associated with the claims file. Furthermore, as the right knee claim on appeal is being remanded to obtain this evidence, and as it has been more than 3 years since the last VA examination, the Board finds that a contemporaneous medical examination would be helpful in adjudicating this claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As regards the left hip, at the time of the November 2009 VA examination, the Veteran reported that he was receiving chiropractic treatment which helped alleviate his hip symptoms. No such records are associated with the claims file, and should be sought on remand. Also, the Veteran alleged that his hip disability made it difficult for him to stand for 15-30 minutes. There was no mention of problems sitting. During the March 2010 RO hearing, the Veteran testified that he was unable to stand for more than 10-15 minutes and that his ability to sit was limited due to hip pain. The Board finds the Veteran's testimony indicates that there may have been an increase in symptomatology associated with the service-connected left hip disability. To ensure that the record reflects the current severity of the Veteran's left hip disability and in light of the Veteran's contentions of increased and additional symptomatology, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected disability under consideration. Id. The Veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, may well have adverse consequences on his claims. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file copies of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for further examination, to ensure that all due process requirements are met, and that and that the record is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all pertinent, outstanding records of evaluation and/or treatment dated since January 2010, to include any records of chiropractic treatment referenced during the November 2009 examination. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claim Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. The RO should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. The RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all pertinent, outstanding records of evaluation and/or treatment dated since January 2010, to include any records of chiropractic treatment referenced during the November 2009 examination. The RO's letter should clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, 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 further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA examination of his left knee and left hip, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All necessary tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should render findings responsive to the applicable criteria for rating the service-connected left hip and left knee disabilities. The physician should conduct range of motion testing of the left hip and left knee (expressed in degrees, with standard ranges provided for comparison purposes). For each disability, the physician should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. With regard to the knee, the physician should also indicate whether there is any lateral instability and/or recurrent subluxation in the knee. If instability is present, the physician should, based on the examination results and the Veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal. If the Veteran fails, without good cause, to report to any scheduled examination, in adjudicating the claims for increased ratings, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should adjudicate the claim in light of all pertinent evidence and legal authority (to include consideration of whether any, or any further, staged rating, pursuant to Hart (cited above)), is appropriate. 7. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs