Citation Nr: 1303463 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-39 383 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to service connection for residuals of left knee injury. 2. Entitlement to service connection for residuals of low back injury. 3. Entitlement to service connection for fungus of the right foot, claimed as jungle rot. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971 and completed subsequent reserve service. His decorations include the Combat Medical Badge. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, denied service connection for diabetes mellitus, residuals of left knee injury, residuals of low back injury, and right foot fungus (jungle rot). In August 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. In a January 2010 rating decision, the RO granted service connection for diabetes mellitus. As the January 2010 rating action represents a full grant of the benefits sought with respect to that issue, it is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed.Cir. 1977). In August 2012, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. During the August 2012 Board hearing, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board's decision on the claim for service connection for residuals of a left knee injury is set forth below. The claims for service connection for residuals of low back injury and for right foot fungus/jungle rot 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. As a final preliminary matter, the Board notes that the issue of entitlement to service connection for fungus/jungle rot of the left foot was raised by the Veteran at the August 2012 hearing, but has not been adjudicated by RO. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim for service connection for residuals of a left knee injury have been accomplished. 2. The Veteran does not have a current disability attributable to an in-service left knee injury. CONCLUSION OF LAW The criteria for service connection for residuals of a left knee injury are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (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) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, 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 claim; (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 claim, 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. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. 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). 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, a November 2007 pre-rating letter provided notice to the Veteran as to what information and evidence was needed to substantiate a claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter also provided him with general information pertaining to VA's assignment of disability ratings and effective dates in accordance with Dingess/Hartman. 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 evidence associated with the claims file consists of service treatment records and VA and private treatment records. Also of record and considered in connection with the appeal are the transcript of the August 2012 hearing and written statements provided by the Veteran and, on his behalf, by his representative, his spouse, and his friend, D.U. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board also finds that no additional RO action to further develop the record in connection with the claim for residuals of left knee injury, prior to appellate consideration, is required. Although the claims file reflects that private treatment records dated after June 4, 2006 and VA treatment records dated prior to January 7, 2009 have not been associated with the claims file, there is no indication any such records are pertinent to the claim herein decided. Specifically, the Veteran indicated on his August 2007 application for benefits that he had not yet received any medical treatment for his left knee. As he testified at the August 2012 hearing that he had never received any medical attention for his left knee except an evaluation as part of his April 2008 VA spinal examination, the report of which appears in the claims file, there is no indication of any outstanding records pertinent to the claim for residuals of left knee injury. Neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the specific claim on appeal. Under the circumstances, the Board finds that the RO has undertaken sufficient and appropriate development action and that no further action in this regard is warranted. No VA examination has been provided in regard to the Veteran's claim for service connection for residuals of left knee injury. However, as explained in more detail below, the evidence currently of record provides a sufficient basis for adjudication of this claim such that no medical examination or opinion is required. See U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4)(i)(2012); McLendon v. Nicholson, 20 Vet.App. 79 (2006). Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159 . The Board acknowledges that the Veteran has reported completing four (4) years of reserve service after his discharge from active duty service and VA has not yet attempted to obtain any records that were generated during his reserve service. Further, he has attested to receiving treatment in active duty that is not documented by the current record and he has provided a copy of a commendation that was not otherwise associated with the record. As such, the Veteran's service record appears incomplete. However, as will be discussed in greater detail below, the claim for service connection for residuals of a left knee disability is being denied because the weight of the evidence establishes that the Veteran does not have a current left knee disability, or signs and symptoms thereof. As any reserve service, or other active duty service, records would not aid the Veteran in establishing the existence of a disability during the appellate period, efforts to obtain any such records would be, in specific regard to the claim for residuals of left knee disability, unnecessary. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements in the law is not appropriate when it imposes additional burdens with no benefit flowing to the Veteran). The Veteran is not prejudiced by the absence of these records. Bernard v. Brown, 4 Vet. App. 384 (1993). As is evident, below, the analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, 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 this 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 on appeal, at this juncture. See 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. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). If a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101 , 1111, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 , 3.309. After a full review of the record, including the medical evidence and the statements made by and on the Veteran's behalf, the Board finds that service connection for residuals of a left knee disability is not warranted. At the outset, the Board notes that no knee disability was noted on the Veteran's pre-induction September 1968 physical examination. Pertinent VA law provides that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). In other words, to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004). Here, there is some evidence - namely, the Veteran's 'check box' indication on a September 1968 Report of Medical History (RMH) that he had, or had at some time in the past, a "'trick' or locked knee" - of a knee condition pre-existing service. However, the Veteran did not indicate whether he was referring to his left or right knee and the "physician's summary" portion of the self report does not make any reference to a knee problem. As the reviewing physician did not analyze or comment on his report, there is no actual "notation" at entrance as to any knee disability. See 38 C.F.R. § 3.304(b) (Only such conditions as are recorded in examination reports are to be considered as noted.). In light of this evidence, the Veteran's indication of a knee problem on the September 1968 RMH, without further explanation, is not enough to meet the clear and unmistakable standard needed to overcome the presumption of soundness. A May 1969 memorandum reflects that the Veteran received a commendation after achieving a perfect score on a Physical Combat Proficiency Test. The memorandum states that he was selected to receive a Physical Fitness Award on the basis of his "exceptional physical abilities and condition." At the end of that year, the Veteran was again evaluated as normal at a December 1969 periodic health evaluation. At that time, he also completed another self report of medical history and again indicated that he had, or had at some time in the past, a "'trick' or locked knee." He, again, did not indicate whether he was referring to the left or right knee and the "physician's summary" portion of the self report reflects a negative treatment history. The Veteran's discharge examination reflects another normal physical evaluation. Although he completed another contemporaneous self report of medical history, at that time he checked a box indicated that he did not have, and had never had a "'trick' or locked knee." The "physician's summary" does not refer to any knee problem. The Veteran underwent a VA Agent Orange examination in February 1995. The examination report reflects that the examining physician provided a general physical evaluation and determined that the Veteran's musculoskeletal system was "unremarkable." In August 2007, the Veteran filed his claim of entitlement to benefits. He claimed "left knee injury" as a disability and indicated that he had not been treated for any such disability, but intended to "make appointment" at the VA Medical Center in Fresno, California. He underwent a VA examination for his claimed back disability in April 2008. The 2008 examiner noted that the Veteran had a normal gait as well as full range of motion of the bilateral knees, without crepitus. The Veteran testified before the undersigned Veterans Law Judge in August 2012. When asked about his service self reports of medical history, the Veteran stated that he "wasn't having any" disability prior to his active duty service. He indicated that he self-reported a disability because he was confused about what he was supposed to report on the form. The Veteran also testified at the hearing that he injured his left knee during basic training, specifically during an exercise requiring crawling under barbed wire. He stated that his knee was sensitive for a while, but "it was fine" after he took aspirin. The Veteran testified that he completed "AIT" (advanced individual training) "fine" and was then assigned to Fort Leonard Wood in Missouri where an x-ray was taken of his knee and showed "this piece of bone lodged in my knee." He reported subsequent pain "only when I bumped it or something." The Veteran stated that the only physician who had ever "looked at" his left knee was the April 2008 physician who conducted the VA spinal examination and that physician "didn't say nothing." The undersigned Veterans Law Judge then asked the Veteran if he had any current left knee disability. She specifically inquired if the left knee was "disabling in any way, shape, at all" and the Veteran responded "in all honesty, no." He explained that he only wrote about his left knee on the claims form "because it happened in the service" and he later reiterated that his left knee "doesn't bother me." The Board finds that the evidence of record indicates that the Veteran does not have, and has not had, a left knee disability. Although he has reported receiving an in-service x-ray for his left knee at Fort Leonard Wood and the claims file indicates that his service records may be incomplete, a May 1969 commendation reflects that the Veteran was in exceptional physical condition, a December 1969 physical examination reflects that his extremities were normal, and a December 1969 physician who reviewed his self-reported medical history indicated that there was a negative treatment history. These records clearly do not support a finding of left knee disability. Furthermore, post-service, the only left knee problem that the Veteran has described to VA is occasional pain, in the past, when he has bumped the knee. The Board notes that complaints of pain, alone, do not constitute a disability for VA purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir. 2001); Evans v. West, 12 Vet. App. 22, 31-32 (1998). Moreover, the Veteran's own August 2012 testimony reflects that he has not experienced any disabling effects due to his left knee at any time pertinent to this appeal. Given the Veteran's own assertions, and because there medical evidence even suggesting that the Veteran has, or has had at any time pertinent to this appeal, a left knee disability, the Board also finds that, on these facts, VA is not required to arrange for the Veteran to undergo VA examination or to otherwise obtain a medical opinion in this regard. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service -or, as appropriate, service-connected disability- but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (2012); McLendon v. Nicholson, 20 Vet.App. 79 (2006). In this appeal, the claim does not meet the requirements to obtain a VA medical opinion. As indicated, fundamentally, there is no evidence that indicates the existence of a current disability, or persistent or recurrent symptoms of a disability. Significantly, the Veteran's own testimony expressly contraindicates any such finding. Thus, even if the Board was to accept, as credible, the Veteran's description of in-service injury, the claim must be denied because of the lack of a current disability. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131; see also 38 C.F.R. § 3.310. Thus, where, as here, competent evidence does not support a finding that the Veteran has the disability for which service connection is sought, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). Under these circumstances, the Board concludes that the claim for service connection for residuals of a left knee injury must be denied. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). ORDER Service connection for residuals of a left knee injury is denied. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. With respect to the Veteran's claim for service connection for residuals of low back injury, the Board notes that a VA examiner concluded in April 2008 that "it would be difficult from the history given to rate this as a service-connected disability." The examiner explained that the Veteran reported experiencing back pain at the time of his September 1968 pre-induction examination. However, the Veteran has subsequently explained that he did not have any disability at the time of his enlistment (and was simply confused about how to complete the self report of medical history) and presented evidence that he was in "exceptional" physical condition in May 1969. The examiner did not have the benefit of review of this evidence in the Veteran's claims file. The Board finds that another VA examination and medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to fairly resolve the Veteran's 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). With respect to the Veteran's claim for service connection for right foot fungus/jungle rot, his service treatment records that are currently associated with the claims file are silent for any such treatment or complaint. However, he is competent to report the circumstances of his service and has presented lay evidence of continuity of symptomatology as well as medical evidence of current disability. Given this evidence and the absence of any current medical opinion on the question of nexus, the Board finds that an examination and medical opinion is needed to resolve the Veteran's claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012); McLendon, 20 Vet.App. at 81. Hence, the RO should arrange for the Veteran to undergo another VA spine examination and, in regard to his claim for service connection for right foot fungus/jungle rot, a VA skin examination, by appropriate physicians, at a VA medical facility. The RO should direct the pertinent medical facility to send notice of the examinations to the Veteran's current, correct address. The Veteran is hereby advised that, if he fails to report for any scheduled examination(s) without good cause, his claims for service connection shall be decided based on the evidence of record. 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 for either scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for any additional medical opinions or examinations, to ensure that all due process requirements are met, and that the record before the examiners is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The RO should specifically ensure that the Veteran's complete service records are associated with the claims file. The Veteran has testified that he received in-service treatment for a left knee injury at Fort Leonard Wood in Missouri after completing AIT, but no such records appear in his file. He has also submitted a copy of a May 1969 commendation that was not otherwise associated with the claims file. Further, he has informed VA that he completed four (4) years of reserve service after being discharged from active duty. Because any missing active duty records, as well as any records of treatment or examination during his reserve service, may be pertinent to the matters remaining on appeal, the RO should make efforts obtain them. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) in regard to requests for records from Federal facilities. In regard to current treatment records, the Board notes that the Veteran testified that he began receiving VA treatment in approximately the year 2007. However, no VA treatment records dated prior to January 7, 2009 are within the claims. Further, the most recent VA medical records associated with the claims file were generated on July 9, 2012. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the VA health care system of central California all outstanding records of relevant VA evaluation and/or treatment of the Veteran prior to January 7, 2009 and after July 9, 2012. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Furthermore, the evidence of record indicates that there are outstanding private medical records which may be pertinent to the claims on appeal. The Veteran has informed VA that he, in the past, received private treatment through Kaiser Permanente. Although the claims file contains Kaiser Permanente records dated through June 4, 2006, the Veteran has testified that he continued to receive care from Kaiser Permanente for more than a year after that date. As such, while this matter is on remand, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim 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 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). 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 (2012). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding records from Kaiser Permanante. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103 , 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 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 remaining claims on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should take appropriate efforts to independently determine whether the Veteran's complete service record is associated with the claims file. The RO's efforts should include, but need not be limited to, inquiry to the National Personnel Records Center (NPRC) and the National Archives in an attempt to retrieve any available records or to confirm their loss or destruction. In specific regard to any reserve service records, contact any sources deemed appropriate, to include, but not limited to, the U.S. Army Human Resources Command. In requesting this information, the RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. Any follow-up actions indicated should be accomplished, and all records and/or responses received should be associated with the claims file. If the RO concludes that the records sought do not exist or that further efforts to obtain these records would be futile, there must be a formal finding and the RO should follow the procedures prescribed in 38 C.F.R. § 3.159(e) with respect to notifying veterans of the unavailability of evidence sought in conjunction with an appeal. 2. The RO should obtain from the VA health care system of central California, all outstanding, pertinent records of evaluation and/or treatment of the Veteran dated prior to January 7, 2009 and after July 9, 2012-to include any available retired hardcopy records. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. 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 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 outstanding records of treatment after June 4, 2006 from Kaiser Permanente. 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 claims within the one-year period). It should also inform the Veteran of the information and evidence necessary to support his claims and should specify what evidence VA will provide and what evidence the Veteran is to provide. 4. 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. 5. 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 a VA spine examination, by an appropriate physician, at a VA medical facility. The entire claims file 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 indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify all current spinal disabilities. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in or is otherwise medically related to service. In rendering the requested opinion, the examiner should consider and discuss the Veteran's medical history and current findings, together with his hearing testimony and the lay statements he has submitted in support of his claim. The examiner is instructed that lay assertions of in-service injury for a combat veteran may be accepted as credible if otherwise consistent with the circumstances of his service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. The RO should also arrange for the Veteran to undergo a VA skin disorders examination, by an appropriate physician, at a VA medical facility. The entire claims file 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 indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should clearly identify all current skin disabilities of the right foot. Then, with respect to each such diagnosed disability, the physician should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (1) had its onset in or is otherwise medically related to service, or (2) was caused or is aggravated by service-connected diabetes mellitus. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. In rendering the requested opinions, the examiner should consider and discuss all pertinent medical and lay evidence, to include the Veteran's hearing testimony and the lay statements he has submitted in support of his claim. The examiner is instructed that lay assertions of in-service injury for a combat veteran may be accepted as credible if otherwise consistent with the circumstances of his service. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 7. If the Veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 8. 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). 9. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all pertinent evidence and legal authority. 10. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them an appropriate time period for response. 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