Citation Nr: 1310762 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-12 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right first and second metatarsophalangeal joints. 2. Entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right knee prior to July 19, 2010, and in excess of 20 percent thereafter. 3. Entitlement to service connection for mild spondylolisthesis L5-S1 (claimed as low back condition), to include as secondary to service-connected disabilities of the right foot and right knee. 4. Entitlement to service connection for osteoarthritis of the left knee, to include as secondary to service-connected disabilities of the right foot and right knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1994 to December 1999. This matter comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a December 2011 Supplemental Statement of the Case (SSOC) the RO increased the evaluation of the Veteran's traumatic arthritis of the right knee to 20 percent disabling, effective July 19, 2010. Because the maximum benefit was not granted, the issues of entitlement to higher evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure a total review of the evidence. The issues of entitlement to an evaluation in excess of 10 percent for traumatic arthritis of the right knee prior to July 19, 2010, and in excess of 20 percent thereafter, entitlement to service connection for mild spondylolisthesis L5-S1 (claimed as low back condition), to include as secondary to service-connected disabilities of the right foot and right knee, and entitlement to service connection for osteoarthritis of the left knee, to include as secondary to service-connected disabilities of the right foot and right knee, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's osteoarthritis of the right first and second metatarsophalangeal joints is manifested by moderately severe disability of the foot caused by in-service injury. CONCLUSION OF LAW The criteria for a disability rating of 20 percent, but no greater, for osteoarthritis of the right first and second metatarsophalangeal joints, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in August 2006 and April 2007. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations and obtained medical opinions as to the severity of his disability. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. §§ 4.40, 4.45 and 4.59 require the Board to consider a veteran's pain, swelling, weakness, and excess fatigability when determining the appropriate evaluation for a disability using the limitation of motion diagnostic codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995). In claims for VA benefits, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The RO has rated the Veteran's service-connected right foot disability under Diagnostic Code 5010, which refers the rater to evaluate the condition as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. For cases where no limitation is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, a 10 percent evaluation is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. The RO continued the assignment of a 10 percent evaluation under this provision. Multiple involvements of the metatarsal and tarsal joints of the lower extremities are considered groups of minor joints, ratable on parity with major joints. 38 C.F.R. § 4.45(f). In this case, the Board also considers all other diagnostic codes which may be applicable to the Veteran's particular foot disability. Disabilities of the feet are evaluated under multiple Diagnostic Codes from 5276 to 5284. With consideration of the facts in this case, the Board finds that Diagnostic Code 5284 is for particular consideration in this case. Notably, the Veteran's condition stems from in-service injury and resultant traumatic arthritis. Diagnostic Code 5284 provides criteria for rating other foot injuries. A moderate foot injury warrants a 10 percent disability evaluation. A moderately severe foot injury warrants a 20 percent disability evaluation and a severe foot injury is assigned a 30 percent disability evaluation. A note to Diagnostic Code 5284 provides that a 40 percent disability evaluation will be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Board finds that the other Diagnostic Codes pertaining to the feet are not for application in this case. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Diagnostic Code 5276 provides ratings on the basis of flatfoot. However, the evidence discussed below discloses that the Veteran does not have flatfoot, i.e. pes planus. The Veteran makes no such assertion. Therefore, Diagnostic Code 5276 is not applicable in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Diagnostic Code 5277 provides ratings on the basis of weakfoot. However, the evidence discussed below specifically shows that the Veteran does not have any muscular atrophy, circulatory disturbance, or weakness characteristic of weakfoot (as described in the rating criteria); the Veteran does not contend otherwise. Therefore, Diagnostic Code 5277 is not applicable in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5277. Diagnostic Code 5278 for claw foot (pes cavus) is not for application in this case as, even considering the various assessments regarding the Veteran's foot disability in the record, there is no indication of any diagnosis of pes cavus and clinical findings show no pes cavus. The Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Code 5278. Diagnostic Code 5279 for metatarsalgia, anterior (Morton's Disease), provides for a maximum evaluation of 10 percent, whether the disability is unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. As outlined below, the Veteran's disability of the right foot has not manifested by metatarsalgia; thus, this diagnostic code is not for application in this case. Diagnostic Code 5280 provides for a maximum 10 percent disability rating for unilateral hallux valgus with resection of the metatarsal head, or severe enough to be equivalent of amputation of the great toe. This diagnostic code is likewise not for application as to award a separate evaluation thereunder would constitute pyramiding as the diagnostic code contemplates limitation of motion and function, as well as pain. 38 C.F.R. § 4.14. Diagnostic Code 5281 for hallux rigidus is not for application in this case as, even considering the various diagnoses for the Veteran's foot disability suggested in the record, there is no indication of any diagnosis of hallux rigidus and clinical findings show no hallux rigidus. The Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Code 5281. Diagnostic Code 5282 provides ratings on the basis of "hammer toe" deformity. However, although the evidence discussed below shows that the Veteran has hammer toe deformity of all toes, only the 1st and 2nd toes are involved here; the Veteran does not contend so, and none of the evidence of record suggests otherwise. Therefore, Diagnostic Code 5282 is not applicable in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Moreover, to award any separate compensable evaluation, even with consideration of the fact that all toes apparently have manifested hammertoe (although not all are subject to service connection), hereunder would constitute pyramiding as the diagnostic code contemplates limitation of motion and function, as well as pain. 38 C.F.R. § 4.14. Notably, 10 percent is the maximum evaluation provided under this diagnostic code and to apply it, rather than Diagnostic Code 5010, could not result in a higher award. 38 C.F.R. § 4.71a. Diagnostic Code 5283 for malunion or nonunion of tarsal or metatarsal bones is not for application in this case as there is no indication of any malunion or nonunion of tarsal or metatarsal bones; clinical findings show no malunion or nonunion of tarsal or metatarsal bones. The Veteran does not contend otherwise. 38 C.F.R. § 4.71a, Diagnostic Code 5283. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran filed his claim for increase in July 2006. A December 2006 private treatment record documents a complaint of pain in the right foot that resulted in the Veteran tending to shift his weight to the left side to avoid such pain. In May 2007 the Veteran was afforded a VA examination. He was noted then as not using any aids to assist in ambulation and did not have any braces. He did not use any shoe inserts or corrective shoes, and did not know how long he could walk. He denied being unsteady, as well as having a history of falls. In terms of history, the examiner noted that the Veteran reported a history of hallux valgus of the right foot while on active duty, with resultant conservative treatment. The Veteran then complained of pain in the foot. Examination revealed that the Veteran appeared in no distress and walked with a normal gait. He was able to heel and toe walk without difficulty. He had about a 30 degree hallux valgus deformity on the right foot, but no hammertoes. He dorsiflexed at the metatarsophalangeal (MTP) joint to 45 degrees and plantar flexed to 20 degrees. There was no evidence of abnormal weight bearing or abnormal shoe wear. There was no skin breakdown and no misalignment. He had a normal posture on standing, squatting, supination, pronation and rising on his heels and toes. There were no callosities or any apparent functional limitations on standing or walking. There was no edema, instability, weakness or tenderness. The examiner remarked that the Veteran had mild hallux valgus. X-rays showed hallux valgus with osteoarthritis of the first MTP joint, but no osteoarthritis in the second MTP joint. The examiner assessed hallux valgus with bunion and mild osteoarthritis. In a March 2009 statement, the Veteran explained that his disability of the right foot should be rated higher than 10 percent disabling because he was suffering from constant pain. He also related that the disability prevented him from participating in normal activities of daily life and from performing his job as a file clerk. Notably, as of October 2009, the Veteran was employed. See October 2009 statement from Veteran. In April 2011, the Veteran was afforded another VA examination. The examiner noted that the Veteran had never had surgery on the right foot and that his condition stemmed from an in-service injury to the foot sustained when jumping out of a truck. At the time of the examination the Veteran complained of pain with walking on the right foot, "like something [was] pushing," in the area of the right second toe. He reported pain when either walking or standing, but no pain when he was not bearing weight upon the right foot. He reportedly had tried shoe inserts, with no relief, and took Percocet, 1 tablet, twice daily for the condition (as well as other orthopedic conditions). He was able to do all activities of daily living without assistance and used no assistive device pertaining to the right foot. The Veteran particularly complained that he could not play baseball with his children or softball as the result of his foot problem. He related that he was able to walk about 2 or 3 blocks, but pain in the knee and right foot limited his walking. He stated that he was able to stand about 15 minutes without having to sit down due to pain in the right foot. He reported flare-ups after walking about 2 blocks, with increased pain in the feet, and lasting for several days. He reported them about once or twice per month, precipitated by walking. He was then working in a sedentary job and was able to perform his duties without interference from the right foot condition. Physical examination showed hallux valgus at 24 degrees. Also present was hammertoe at the 2nd, 3rd and 4th toes. The examiner remarked that the 2nd toe was more curled than the others and exhibited some ankylosis. The foot was unable to move, even passively. The 1st MTP joint was very painful to palpation, and the 2nd MTP joint was more painful than the first. The remaining MTP joints were not painful with palpation or manipulation, although the distal forefoot was, but not laterally. There were no calluses on the feet and the arches were negative to palpation. Range of motion of the toes was 30 percent of normal and the 5th toe rode under the 4th toe. Repeat examination in the area of the 1st and 2nd MTP joints revealed objective pain. There was no evidence of any instability and the arches were maintained with standing. There was no evidence of abnormal weight bearing, although the Veteran was wearing a new pair of shoes. The ankles and heels were normal and palpated so. Neurovascular examination was normal. The examiner remarked that previous X-rays confirmed traumatic arthritis of the 1st and 2nd MTP joints. The examiner rendered diagnoses of status-post capsulitis and contusion 2nd MTP joint with traumatic arthritis, right foot, traumatic arthritis of the 1st MTP joint, right foot, and hallux valgus and hammertoes on the right foot of toes 2, 3, and 4. The examiner remarked that flare-ups could not be addressed in light of DeLuca on current examination. The examiner felt that the overall severity of the condition was best characterized as moderate at most. Resolving any doubt in favor of the Veteran, the Board finds that a 20 percent, but no greater, evaluation is warranted for osteoarthritis of the right first and second MTP joints. VA examination in April 2011 showed that the Veteran could not walk or bear weight on the foot without pain. He was limited to walking about 2 or 3 blocks and could only stand about 15 minutes, all with consideration of occasional flare-ups. Notably, the 2nd toe then exhibited curling and some ankylosis and the foot was unable to move passively. Saliently, but not dispositively, the VA examiner characterized the condition as moderate; however, in light of the severity of the condition and the Veteran's limitations, the Board concludes that the condition is best characterized as moderately severe. Notably, no assistive devices have been required. In rendering this determination, the Board has considered the Veteran's competent, credible and probative account of flare-ups. While the examiner did not explain why functional impairment on flare-ups could not be addressed at the time of the examination, the Veteran provided sufficient lay information as to his flare-ups for the Board to render an informed determination. Accordingly, the examiner's inability to provide this information does not render the examination inadequate as the examiner reviewed the medical history, conducted a physical examination and provided sufficient information, together with the Veteran's reports of flare-ups, to allow the Board to render an informed determination. In this regard, the Veteran reported that he had flare-ups after walking about 2 blocks with increased pain in the foot which lasted for several days. This happened one to two times per month, precipitated by walking. Based on the objective findings and the Veteran's reports of foot pain on use, which resulted in limitations on walking, the Board concludes that a 20 percent evaluation is warranted pursuant to Diagnostic Code 5284. However, the Board finds that a higher evaluation is not warranted. The Board acknowledges that the term "severe" is undefined, but considering that the condition was characterized as moderate on examination and the Board has resolved doubt in favor of the Veteran in granting a 20 percent evaluation for moderately severe disability of the right foot, a 30 percent evaluation is not warranted. The Veteran's symptoms, and the severity thereof, including the functional limitations due to pain, were fully contemplated in assigning the 20 percent evaluation. Moreover, it is clear that the Veteran has retained the ability to use this foot as he is able to ambulate thereon, despite the notation that the foot was unable to move passively. He has not required the use of any device to ambulate. Accordingly, the Board does not find that the condition is best characterized as severe or that it manifested by actual loss of use of the right foot at any time during the relevant period involved in the present appeal. The Board has also considered referral for extraschedular consideration. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected condition is inadequate. A comparison between the level of severity and symptomatology of the Veteran's right foot disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The criteria particularly contemplate his specific symptoms of limitation of motion and function, as well as pain and address the severity of the condition. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a 20 percent evaluation, but no greater, for osteoarthritis of the right first and second metatarsophalangeal joints is granted subject to the law and regulations governing the award of monetary benefits. REMAND In April 2011 the Veteran was afforded a VA examination to address the severity of his traumatic arthritis of the right knee. At this time he reported a history of flare-ups about once or twice per month. In this regard he described that the flare-ups manifested by tightness and pain in the posterior knee. A July 2011 VA treatment record contained within the Veteran's Virtual VA claims file documents a complaint of intermittent posterior right knee pain that felt like a pulling to the back of the knee. The Veteran indicated that these sensations occurred about once or twice per week and lasted about an hour or so, with no identifiable trigger. Notably, new radiographs were ordered at this time, but do not appear in the claims file, to include Virtual VA. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the July 2011 VA treatment note and the indicates possible worsening the Veteran's right knee disability, particularly in that it suggests increased frequency and severity of flare-ups, the Veteran should be afforded a new VA examination. Also, the Board again notes that the July 2011, as well as a July 2010, VA note documents that new radiographs were ordered, yet none appear in the record thereafter. VA is under a duty to make as many requests as are necessary to obtain records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Accordingly, this matter must be remanded to attempt to obtain these outstanding records. Also, the Board notes that in May 2007 the Veteran was provided a VA examination to address whether he had a low back disability and a left knee disability caused or aggravated by his service connected disabilities of the right foot and right knee. Examination at that time resulted in negative etiological opinions. In this regard, the examiner reasoned that they knew of no medical literature that ever stated that the Veteran's low back disability (spondylolisthesis) was caused by osteoarthritis in either the foot or knee an concluded that there was no correlation. They also reasoned, along these lines, that there was also no correlation between arthritis of the left knee and the Veteran's right knee and right foot disabilities. They felt that the early osteoarthritis of the left knee was due to aging and that spondylolisthesis had multiple causes and that to state the cause thereof would require resorting to speculation. They also found no evidence of aggravation, particularly stating that the medical literature did not support a cause and effect relationship, as well as aggravation. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board concludes that the May 2007 VA examination is inadequate to decide the claims for service connection of mild spondylolisthesis L5-S1 and osteoarthritis of the left knee. Although the examiner observed that the Veteran had a normal gait, a review of the record discloses that the Veteran's right foot disability has caused him to tend to shift his weight to the left side of his body in order to avoid pain in the right foot, and that one physician remarked that the Veteran's improper balance was causing a "mobile spondylolisthesis of L5-S1." See December 2006 letter from R.W., M.D. The examiner did not address what, if any, effect the Veteran's demonstrated weight shift had on his low back and left knee disabilities, to include by means of causation and/or aggravation. Accordingly, the Board concludes that the VA examination is inadequate to decide the claims and it must, therefore, be returned. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dating from July 2010 from the G.V. (Sonny) Montgomery VA Medical Center, including x-ray reports dating from July 2010. Perform any and all follow-up as necessary, and document negative results. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected right knee disability. All indicated studies, including X-rays and range of motion studies in degrees, should be conducted, and all findings should be reported in detail. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The examiner is requested to identify any objective evidence of pain or functional loss due to pain. The specific functional impairment due to pain should be identified, and the examiner should be requested to assess the extent of any pain. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state and explain why. The examiner should also indicate whether the Veteran's service-connected right knee disability has manifested by lateral instability and/or subluxation. If so, the examiner should comment on the severity of such instability and/or subluxation including the duration and frequency of such manifestations. A complete explanation for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination to address the nature and etiology of his claimed spondylolisthesis L5-S1. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner should address the following questions: a) Whether the current spine disability at least as likely as not (a probability of 50 percent or greater) began in or is related to active service. b) If the examiner finds that it is less likely than not that the Veteran has a low back disability that is etiologically related to service, is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee caused any currently diagnosed lumbar spine disability, including spondylolisthesis L5-S1? Attention in this regard is directed towards the Veteran's propensity to shift his weight from the right lower extremity to the left due to the service-connected disability of the right foot. c) If it is determined that a current lumbar spine disability, including spondylolisthesis L5-S1, was not caused by service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee, the examiner should opine whether it is at least as likely as not that any currently diagnosed lumbar spine disability has been aggravated (that is, permanently worsened) by the service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's lumbar spine disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected right foot disability. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. 4. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA examination to address the nature and etiology of his claimed osteoarthritis of the left knee. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his service treatment records, lay assertions, and the pertinent medical evidence. The claims folder must be made available for review in conjunction with the opinion. The examiner should address the following questions: a) Is it at least as likely as not (i.e. a 50 percent probability or greater) that osteoarthritis of the left knee was incurred during service or is otherwise etiologically related to service? b) If the examiner finds that it is less likely than not that the Veteran has osteoarthritis of the left knee that is etiologically related to service, is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee caused any currently diagnosed osteoarthritis of the left knee? Attention in this regard is directed towards the Veteran's propensity to shift his weight from the right lower extremity to the left due to service-connected disability of the right foot. If it is determined that osteoarthritis of the left knee was not caused by service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee, the examiner should opine whether it is at least as likely as not that any currently diagnosed osteoarthritis of the left knee has been aggravated (that is, permanently worsened) by the service-connected osteoarthritis of the right first and second metatarsophalangeal joints and/or traumatic arthritis of the right knee beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's left knee disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected right foot disability. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; "less likely" weighs against the claim. 5. After the development requested above has been completed to the extent possible, review the record and readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs