Citation Nr: 1307699 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 08-26 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a left foot disability. 5. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a right foot disorder, a right knee disorder, a right ankle disorder, a right wrist disorder and a right hip disorder. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from March 1961 to July 1962. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran presented testimony relevant to the issues on appeal before the undersigned Veterans Law Judge at a Board hearing held at the Portland RO. A transcript of the hearing is associated with the claims file. In a March 2012 decision, the Board reopened the above claims for service connection and remanded them for further development. Since the RO had denied reopening of the claims, they were remanded for initial consideration by the RO. This was done via a supplemental statement of the case issued in November 2012, and, to that extent, the Board's prior remand instructions were fulfilled. However, as to the claim for compensation under 38 U.S.C.A. § 1151, there was not sufficient compliance with the remand instructions, and this issue is addressed in the REMAND portion of the decision below and again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The March 2012 Board decision also denied reopening of claims for service connection for residuals of whiplash/neck injury and residuals of fractured ribs. In an April 2012 statement, the Veteran expressed his disagreement with the Board's decision. In May 2012, the Board denied any motion for reconsideration of these claims, and the Veteran was informed that he had 120 days to appeal the decision to the U.S. Court of Appeals for Veterans Claims. The notice of appellate rights clearly advises the Veteran to send a Notice of Appeal to the Court. The address of the Court is provided therein. His representative was copied on this letter. In a subsequent statement received by the Board in June 2012, the Veteran again expressed disagreement with the Board's denials of these claims. The Board again notes that the March 2012 Board decision of these claims is final. The Veteran did not appeal the decisions to the Court. (Parenthetically, the Board notes that the Veteran is certainly familiar with the process of appealing claims to the Court, as he previously appealed a May 2000 Board decision to the Court. See April 2001 Court Order.) In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claims. The documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran's current right knee disability did not have onset in service or in the first post-service year, and was not caused or aggravated by the Veteran's active military service. 2. The Veteran's current left ankle disability did not have onset in service or in the first post-service year, and was not caused or aggravated by the Veteran's active military service. 3. The Veteran's current left knee disability did not have onset in service or in the first post-service year, and was not caused or aggravated by the Veteran's active military service. 4. The Veteran's current left foot disability did not have onset in service or in the first post-service year, and was not caused or aggravated by the Veteran's active military service. CONCLUSIONS OF LAW 1. A right knee disability was not incurred in or aggravated by active service, and service incurrence or aggravation of arthritis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A left ankle disability was not incurred in or aggravated by active military service, and service incurrence or aggravation of arthritis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 3. A left knee disability was not incurred in or aggravated by active service, and service incurrence or aggravation of arthritis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 4. A left foot disability was not incurred in or aggravated by active military service, and service incurrence or aggravation of arthritis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the issues decided herein, the record reflects that the Veteran was provided all required notice in letters mailed in May 2006, prior to the initial adjudication of the claims in July 2006. All appropriate development to obtain the Veteran's pertinent, available service treatment records (STRs), post-service medical records (including VA and private) and records from the Social Security Administration (SSA) has been completed. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. In this regard, the Veteran indicated that he had been treated at an Air Force Base hospital in Portland, Oregon, in June 1962 for injuries incurred in an in-service car accident. The RO contacted the National Personnel Records Center (NPRC) in an attempt to obtain these records in July 1991, March 1992, and September 1993. In July 1991, the NPRC reported that it had sent all available records to the RO. A report of contact dated in February 1992, indicates that when the Portland Air Base medical clinic was de-activated in 1964, all records were sent to NPRC. In March 1992, the NPRC stated that it did not have clinical records from the Portland Air Force Hospital. In September 1993, NPRC informed the RO that several searches have been made for these records with negative results. Given the multiple failed efforts to obtain these records, and NPRC's report that they are unavailable, it is reasonably certain that the Veteran's records from the Air Force hospital in Portland do not exist and that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A. The Veteran was notified that the RO was unable to obtain the records from the Air Force Hospital in Portland in September 1992. The RO also advised the Veteran to submit any STRs that he had in his possession. The Veteran also indicated that his STRs were among those presumed to have been lost in a 1973 NPRC fire. However, NPRC has reported that it provided all STRs to the RO in July 1991. The NPRC has not reported that any of the Veteran's records were lost in a fire. Moreover, as both his entrance examination and his exit examination, as well as dental, health and immunization summaries are associated with the claims folder, the records appear to be largely intact. Moreover, the RO made attempts to obtain the treatment records from the Teamsters Union and Stayton Hospital but to no avail. The Veteran was notified of the unsuccessful attempts. The Board also finds that no additional development for medical opinions or examinations is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran underwent a VA examination in February 2004. The examiner who provided the opinion considered the Veteran's medical history as documented in the claims folder and relevant medical principles and provided a sound rationale for the conclusions reached . For those reasons, the medical opinion is deemed adequate for the purpose of this adjudication and no further medical opinion is needed. Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. Legal Criteria - Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that he incurred bilateral knee, left foot and left ankle disabilities in a car accident during active service. He alternatively contends that his current bilateral knee, left foot and left ankle disabilities are related to in-service parachute jumps. The Veteran's service personnel records show that he was awarded a parachutist badge; however, his military occupational specialty was a construction machinist operator. The Veteran's STRs show that pes planus of the feet was noted at enlistment. There were no other defects or abnormalities pertinent to the left foot. The Veteran's STRs are negative for complaints or findings related to a knee disability, left foot disability, or left ankle disability. At the time of a July 1962 discharge examination, the Veteran denied having or having had any arthritis, bone, joint or other deformity, lameness, or a "trick" or locked knee. The lower extremities were clinically evaluated as normal. The Veteran signed an entry indicating there had been no change in his physical condition since last prior examination, the date of which appears to be June 1962. Records of any treatment the Veteran may have undergone for a 1962 automobile accident have not been found and are unavailable. The post-service records contain no findings referable to bilateral knee, left foot, or left ankle disabilities until the 1970s. A November 1972 treatment record from Dr. S notes that the Veteran had "reinjured and irritated his knees from an old auto accident while in the military." It appears that X-ray studies were obtained for the left knee only. No diagnosis was noted. A May 1975 private treatment record notes that the Veteran was seen for symptoms of swelling and a contusion over the head of the first metatarsal of the left foot. The Veteran reported a history of a previous (undated) left foot injury. X-ray studies were negative. The diagnosis was contusion. A VA hospital summary indicates that the Veteran was admitted in September 1979 for assistance in dealing with chronic pain syndrome affecting the low back and left leg. The Veteran did not specifically report left ankle disability. Records from Dr. R dated from October 1979 to 1995 reflect treatment for back problems following an original injury in 1978 at work. Other private evaluation reports dated from the late 1970s include note of a work-related injury with subsequent pain in the neck, low back and lower extremities (to include the knees, left foot and left ankle) and reflect treatment and evaluation for such thereafter. The Veteran did not, in connection with his Worker's Compensation claim or treatment, report previously existing service-related injuries. Rather, records show that in the history the Veteran denied prior problems in the complained of areas. The Veteran did not report any injuries from the in-service motor vehicle accident when he was examined by the State of Washington Department of Labor in July 1988. Private medical records also show that the Veteran injured his left second toe in October 1988. The RO first received a formal compensation claim identifying residuals of a motor vehicle accident in March 1991. (The Veteran has argued that he applied earlier, specifically in 1979. However, a review of the record reflects only that the RO notified the veteran of receipt of a claim, on which the Veteran neither specified whether he was seeking pension or compensation benefits, nor what conditions for which he was seeking benefits. A 1979 claim, would still have been approximately 17 years after service, and would have followed intercurrent on the job injuries.) In identical statements received in July 1993, the Veteran's two brothers reported that the Veteran returned home on emergency leave in June 1962, and was then involved in an accident wherein he sustained broken ribs, a left ankle injury and two broken teeth. They recalled that he had been treated at Stayton Memorial Hospital and an Air Force hospital. In an addendum received in July 1993, one brother recalled that Veteran also hurt his knees in the same accident. During a February 1993 hearing, the Veteran testified that his left ankle disability resulted from a July or August 1962 automobile accident. He also attributed his orthopedic problems to being a paratrooper and having approximately 15 parachute jumps in service. In May 1995 and March 2000, the Veteran's friend E.F. related that the Veteran had been in an automobile accident in June or July 1962. He recalled seeing the Veteran on the day of the accident, when he complained of pain in various parts of his body. Later in the day he was transported to a VA hospital, and when he returned each foot, ankle, and knee was wrapped. On VA examination in May 1995, the Veteran reported that he injured the left ankle in a 1962 accident. On orthopedic examination it was noted that the examiner did not have the Veteran's claims file to review. The Veteran indicated he had a left ankle sprain. The diagnosis, in pertinent part, was a history of a left ankle sprain. The May 1995 VA examination report notes the Veteran's reported history of knee injury in a 1962 automobile accident, but contains no findings referable to a current knee disability. The May 1995 VA examination report also notes that the Veteran reported that he had pain under the first metatarsal of the left foot when he stands and walks. Examination revealed plantar fascial tenderness over the first metatarsal head of the left foot. The arch appeared grossly normal. There was no heel tenderness or open ulcerations on the feet. The diagnosis was degenerative joint disease of the head of the second metatarsal on the left. On VA examination in February 1997, the Veteran provided a history of developing left ankle pain with parachute jumping in about 1961. He also reported incurrence of multiple injuries from the motor vehicle accident in 1962. Examination of the left ankle revealed normal range of motion. There was mild pain with motion. There was moderate medial tenderness of the left ankle. X-ray studies of the left ankle appeared normal. After examination the examiner noted a history of left ankle injury in the military with chronic symptoms diagnosed as chronic synovitis. The Veteran's continued left heel pain was diagnosed as referred pain from the ankle, and the examiner noted some probable plantar fasciitis at times. The examiner noted that he did not find "anything in the C-File that contradicts the history or examination as given above." The February 1997 VA examination report contains no findings referable to a current knee disability. The February 1997 VA examination report also notes the Veteran's complaints of pain in the left heel, mid foot and forefoot. The Veteran indicated that his left foot felt numb. The examiner also noted that back symptoms started in 1978 with a fall. Examination revealed that the Veteran could stand on his heels and toes. Range of motion of the feet was normal. There was mild pain with movement. There was tenderness at the plantar aspect of the left mid-foot. There was moderate tenderness of the left mid-foot. X-ray studies revealed a deformity of the left second metatarsal head. After examination the impression was a history of left foot injury in the military due to parachute jumping and a later motor vehicle injury. The Veteran's continued left heel pain was diagnosed as referred pain from the ankle, and the examiner noted some probable plantar fasciitis at times. Left arch pain was diagnosed as muscular strain and left forefoot pain was diagnosed as moderate synovitis. The examiner noted that he did not find "anything in the C-File that contradicts the history or examination as given above." During a February 2000 hearing the Veteran testified that he injured his knees in parachute jumps during service. He reported a 15 year history of popping sounds in the knees. A February 2004 VA examination report notes that the Veteran reported injuring his knees in service in the automobile accident. He stated that he did not seek treatment for the knees after the initial accident. The examiner noted that he had reviewed the claims folder and noted that the STRs showed no treatment of the knees. The Veteran reported having current pain in the knees. Examination revealed that the range of motion of both knees was from five degrees of extension to 135 degrees of flexion. The ligaments were intact. X-ray studies revealed normal joint spaces and no deformities. The diagnosis was mild synovitis of the left knee based upon findings of 1+ effusion in that joint. The examiner concluded that the left knee symptoms were due to the on the job injury in 1978. The examiner also concluded that there was no orthopedic diagnosis for the right knee. The February 2004 VA examination report also notes that the Veteran reported injuring his left ankle in a motor vehicle accident in service. He reported that he was treated for this injury at Stayton Hospital and the Portland Air Force Base hospital. He did not know if X-ray studies of the left ankle were done at that time. He reported that he had no subsequent treatment of the left ankle until the 1980's. The Veteran also stated that he had injured his left ankle in the April 1978 on-the-job injury. The examiner reviewed the claims folder and noted that the STRs contained no information regarding the left ankle. The examiner noted that the claims folder showed no treatment of the left ankle. Examination revealed normal range of motion of the left ankle. There was no obvious muscle atrophy. X-ray studies revealed that the joint was normal in appearance. The examiner concluded that there was no orthopedic diagnosis in regard to the left ankle. The examiner also concluded that the Veteran had left sciatica which was felt in the left ankle, and which was secondary to the 1978 on-the-job injury. The February 2004 VA examination report notes the Veteran's complaints of pain in the dorsum of the foot. The examiner noted that the claims folder was reviewed. The examiner indicated that STRs did not show treatment of a left foot disability. Examination revealed normal strength in the left foot. There was weakness of the left great toe. A diagnosis of a left foot disability was not made. The examiner concluded that the Veteran's left leg symptoms were probably related to left sciatica which was secondary to the on-the-job injury in 1978. A December 2004 VA comprehensive preventive visit note shows an assessment of arthritis of the right knee and left ankle. No X-ray studies were associated with this treatment record. In statements received in December 2004, the Veteran's wife reported that she met the Veteran in 1962 and he told her about his in-service car accident and associated injuries, including to his left foot, left ankle and knees. She also described his ongoing problems with these joints since that time. A May 2011 treatment record from Dr. RGZ notes the Veteran's complaints of pain in various joints, including the right knee, since service. Additional evidence of record shows that the Veteran was awarded SSA disability benefits for dysthymia and anxiety disorder. Records considered by SSA are either duplicative of those noted above or do not pertain to the issues at hand. Upon review of the evidence, the Board notes that the Veteran's STRs are completely silent as to any knee, left foot, or left ankle disability. Again, the Board notes that at the time of a July 1962 discharge examination, the Veteran denied having or having had any arthritis, bone, joint or other deformity, lameness, or a "trick" or locked knee. The lower extremities were clinically evaluated as normal. The Veteran signed an entry indicating there had been no change in his physical condition since last prior examination, the date of which appears to be June 1962. Moreover, the record does not contain any evidence that arthritis was manifested in the Veteran's first post-service year. There are complaints and findings of knee, left ankle and left foot disabilities after service, but always in connection with a post-service injury. Regarding the November 1972 treatment record from Dr. S that notes that the Veteran had "reinjured and irritated his knees from an old auto accident while in the military," the Court has held on a number of occasions that a medical opinion which is premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"]. Therefore, the account of the Veteran's knee injuries in service does not gain in probative value by virtue of being repeated by a physician who otherwise has no knowledge of the history in the matter. Id. The February 1997 VA examiner appears to relate current left foot and left ankle disabilities to injuries that occurred in the military. However, this opinion did not include any reasons and bases. Moreover, the opinion did not discuss the negative STRs, lack of contemporaneous evidence of disability in the 10 years after service, or the numerous other medical records documenting other injuries after service. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Conversely, the February 2004 VA examiner's opinion is clearly against the Veteran's claims seeking service connection for left knee, left ankle and left foot disabilities. This opinion is based on a review of the Veteran's entire pertinent medical history, including his STRs and post-service medical evidence as noted above. The examiner provided a detailed explanation of the rationale for his conclusion, as noted above. In light of the foregoing, the Board finds the February 2004 opinion the most probative and persuasive evidence in this matter. The February 2004 VA examiner opined that there was no evidence of a right knee disability. In such instances, the Court held that in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that any current right knee disability may be shown (a December 2004 VA comprehensive preventive visit note shows an assessment of arthritis of the right knee that is not associated with any X-ray studies), the Board again notes that the Veteran's STRs are negative for evidence of any right knee disability. The first medical evidence of such disability is decades after service. Such a long interval of time between service separation and the earliest documentation of the disease is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, there is no medical opinion linking a diagnosis of right knee disability to the Veteran's military service. The Veteran believes that his claimed disabilities were caused by his active service. Moreover, he has provided lay statements from family and friends to support his contentions. The Board acknowledges the lay assertions that the Veteran was involved in an automobile accident and finds that these statements are competent recitations of matters within their own personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In other words, the Veteran, his family and friends are competent to report the Veteran's activities during his service, to include the accident. However, they are not competent to discuss the onset of any claimed disability due to this accident. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran, his family and friends are not competent to address etiology in the present case. Moreover, the lay contentions that the claimed disabilities were manifested in service are outweighed by the lack of findings in the STRs and post-service evidence of record which, as a whole, indicates the Veteran did not report any pertinent complaints until November 1972, which is more than 10 years after his discharge from active duty. Therefore, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). [Continued on Next Page] ORDER Service connection for a right knee disability is denied. Service connection for a left ankle disability is denied. Service connection for a left knee disability is denied. Service connection for a left foot disability is denied. REMAND Compensation under 38 U.S.C.A. § 1151 The Veteran contends that the orthopedist who conducted the February 2004 VA medical examination in connection with his claims injured his right foot and ankle, his right knee, his right hip, and his right wrist. See handwritten statement received March 2006. In this regard, the Veteran has submitted findings of enthesopathy or inflammation in the ligaments and tendons of the right hip, foot and, ankle. See VA radiologic reports dated in May 2011. In March 2012, the Board remanded this issue to obtain a medical opinion from a physician who had not previously examined the Veteran. After reviewing the claims file, the physician was to provide an opinion as to whether it is at least as likely as not that the Veteran has any additional disability due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA at the February 2004 VA medical examination; or is a causal relationship between any additional disability affecting the right foot, right knee, right ankle, right wrist, and/or right hip and any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA unlikely? In so opining, the physician should consider the Veteran's physical condition before and after the VA care or treatment. A VA physician reviewed the claims file in May 2012 and noted that the medical evidence dated after the February 2004 VA examination, to include May 2011 X-ray studies, showed no abnormal examination findings. However, as noted above, the May 2011 X-ray studies show findings of enthesopathy or inflammation in the ligaments and tendons of the right hip, foot and, ankle. Therefore, remand for a new opinion is necessary. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the VA physician who provided the May 2012 opinion for an addendum opinion. If that physician is not available, any medical professional who has not previously examined the Veteran can provide the opinion. The claims file (including the May 2011 VA radiologic reports) must be made available to and be reviewed by the physician and the addendum report should so indicate. The Board appreciates the thorough opinion and rationale provided in May 2012. However, the physician is asked to specifically address the findings of enthesopathy or inflammation in the ligaments and tendons of the right hip, foot and, ankle noted in the May 2011 VA radiologic reports. The physician is asked to again provide an opinion as to whether it is at least as likely as not (i.e., at least a 50/50 degree of probability) that the Veteran has any additional disability due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA at the February 2004 VA medical examination; or is a causal relationship between any additional disability affecting the right foot, right knee, right ankle, right wrist, and/or right hip and any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA (or failing to do so) unlikely (i.e., to less than a 50/50 degree of probability)? The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. If the physician cannot answer any of these questions without resorting to medically unsupported speculation, the physician should provide a complete, detailed explanation for his/her inability to do so. A complete rationale for each opinion offered must be included, and an explanation of the principles involved would be of considerable assistance. 2. When all of the requested development above has been completed the case should be reviewed based on any additional evidence submitted. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is 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). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs