Citation Nr: 1311329 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-40 775A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for left foot disability, to include as secondary to left and right knee disabilities. 2. Entitlement to an increased disability rating for left knee disability, currently rated as 30 percent disabling. 3. Entitlement to an effective date earlier than May 22, 2008, for a total disability rating based on individual unemployability (TDIU). 4. Whether there was clear and unmistakable error (CUE) in a July 1988 rating decision that assigned a single 10 percent disability rating for left knee disability. ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to March 1988. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the North Little Rock, Arkansas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a May 2008 rating decision, the RO continued a 30 percent disability rating for left knee disability. In a July 2009 rating decision, the RO denied service connection for left foot disability. In a September 2010 rating decision, the RO granted a TDIU and assigned May 22, 2008, as the effective date of the TDIU. In the September 2010 rating decision the RO also denied that there was CUE in a July 1988 rating decision in which the RO assigned a single 10 percent disability rating for left knee disability. The Veteran initiated an appeal of a December 2008 rating decision denying service connection for a left ankle disability. In an October 2010 rating decision the RO granted service connection for left ankle arthritis. The appeal for service connection for left ankle disability therefore is resolved and is not before the Board. In a March 2010 rating decision, the RO denied service connection for right hip disability. The Veteran initiated but did not perfect an appeal of that rating. In January 2012, the Veteran wrote that a VA examination to address his right hip disability service connection claim was inadequate. The Veteran's statement appears to raise again a claim for service connection for right hip disability. Thus, the issue of reopening a claim for service connection for right hip disability has been raised by the record, but that issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of service connection for left foot disability and an increased rating for left knee disability 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. FINDINGS OF FACT 1. VA received the Veteran's claim was an increased rating for left knee disability and, by extension, for a TDIU, on May 22, 2008. 2. Outside of a period of convalescence following January 2008 left knee surgery, the Veteran's service-connected disabilities did not make him unable to secure or follow a substantially gainful occupation between May 22, 2007, and May 22, 2008. 2. The July 1988 rating decision assigning a single 10 rating for left knee disability based on instability was not undebatably erroneous based on the evidence then of record and the law then in effect. CONCLUSIONS OF LAW 1. The TDIU may not be effective earlier than May 22, 2008. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 2. The July 1988 rating decision was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the 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 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.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The VCAA does not apply to a claim of clear and unmistakable error. See Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding that VCAA does not apply to a claim of clear and unmistakable error in a rating decision by the RO. With respect to the issues presently on appeal, the RO provided the Veteran with VCAA notice in letters issued in February 2009, March 2009, and March 2010. Those letters addressed the information and evidence necessary to substantiate claims for service connection, including service connection on a secondary basis. The March 2010 letter addressed what evidence must show to warrant a TDIU, as well as what must be shown for a valid claim of CUE. The 2009 and 2010 letters informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, and the reports of VA medical examinations. With respect to the claims that the Board is deciding at this time, the Veteran has not identified any potentially relevant evidence that is not of record. With respect to the claims that the Board is deciding at this time, the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration on the merits of the claims that the Board is deciding at this time. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Effective Date for TDIU In a September 2010 rating decision, the RO granted a TDIU and assigned May 22, 2008, as the effective date of the TDIU. The Veteran has appealed for an earlier effective date. He contends that he became unemployable earlier than May 2008. VA regulations allow for the assignment of a TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain ratings or combinations of ratings for service-connected disabilities. If there is one such disability, that disability must be ratable at 60 percent or more. For the purpose of having one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a) (2012). When a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, but the veteran's ratings do not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a), rating boards should refer the case to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 4.16(b) (2012). Generally, the effective date of an award of VA benefit is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. For awards of increased compensation, if the evidence demonstrates that an increase in disability occurred within the one year period preceding the date of receipt of a claim for increased compensation, the increase is effective as of the earliest date the increase was factually ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim. A claim may be initiated through an informal claim, a communication that indicates an intent to apply for a VA benefit and identifies the benefit sought. 38 C.F.R. § 3.155 (2012). In addition, a medical treatment or examination record can constitute a claim for an increased rating. See 38 C.F.R. § 3.157 (2012). In such cases, the date of VA or uniformed services medical treatment or examination will be accepted as the date of a claim. 38 C.F.R. § 3.157(b)(1). Where a claim is raised by a record from a private physician or from a government agency other than VA or the service departments, the date when VA receives the record will be accepted as the date of the claim. 38 C.F.R. § 3.157(b)(2), (3). The Veteran's left knee disability was rated at 10 percent effective March 26, 1988, and 30 percent effective January 1, 1999. Temporary 100 percent ratings have been in effect for the left knee disability in parts of 1998 and 2008. Service connection for the Veteran's right knee disability was established as secondary to his left knee disability. The right knee disability was rated at 0 percent from September 26, 2002, 10 percent from October 28, 2004, and 30 percent from May 22, 2008. The RO granted service connection for adjustment disorder with depressed mood as secondary to pain from service-connected left knee disability. Service connection and a 30 percent rating became effective May 22, 2008. In January 2008, the Veteran underwent left knee surgery. At that time VA orthopedic surgeon J. V., M.D., wrote that the Veteran was eligible to apply for a temporary 100 percent disability rating, and that a twelve week convalescence period would be required for rehabilitation from the surgery. In April 2008, Dr. V. completed a medical questionnaire for the Veteran's employer, an equipment rental business. Dr. V. wrote that traumatic arthropathy in the Veteran's left knee was chronic and not expected to improve. He stated that all activity that stressed the left knee should be avoided. Dr. V. indicated that the activities the Veteran should not do included any prolonged standing, walking, or running. On May 19, 2008, VA primary care physician P. R. F., M.D., wrote that he treated the Veteran, and that the Veteran suffered from severe knee problems which had caused great difficulty with his occupation and employment status. Dr. F. stated that this had contributed significantly to the development of depression. On May 20, 2008, the RO stamped as received the Veteran's claim for service connection for depression secondary to service-connected chronic pain. On May 22, 2008, the Veteran submitted, through his representative, a claim for an increased rating for left knee disability, and claims for service connection for low back, hip, and right knee disabilities secondary to left knee disability. He enclosed the April 2008 questionnaire that Dr. V. completed. In a November 2009 statement, the Veteran indicated that he was seeking a TDIU. He contended that statements from Dr. V. and Dr. F. supported his claim for a TDIU. In granting a TDIU in September 2010, the RO found that as of May 22, 2008, the Veteran's service-connected disabilities from a common etiology warranted a combined rating of 60 percent. On April 1, 2010, the RO received a copy of records from the Veteran's claim for disability benefits from the United States Social Security Administration (SSA). On May 16, 2008, SSA determined that the Veteran had been disabled since January 16, 2008, based on a primary diagnosis of degenerative joint disease of the left knee and a secondary diagnosis of diabetes mellitus. In a November 2011 statement, the Veteran contended that unemployability was raised at a much earlier date. In a January 2012 statement, the Veteran contended that he was individually unemployable well before 2008. He argued that the effective date for his TDIU should be January 16, 2008, the effective date of his SSA disability benefits. Consistent with Rice, the Veteran's May 2008 claim for an increased rating raised a claim for a TDIU. Therefore the appropriate effective date of the TDIU is May 22, 2008, the date of receipt of that claim. If, however, the evidence demonstrates that his disabilities increased such that a TDIU was warranted within the one year period preceding May 22, 2008, the effective date should be the earliest date the increase was factually ascertainable. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2012). Medical records and statements help to show the effects of the Veteran's service-connected disabilities in May 22, 2007, through May 22, 2008. In a VA joints examination in January 2005, it was noted that the Veteran was able to function at home and work without significant limitation. In VA treatment in March 2005, the Veteran reported that he worked as a mechanic, was on his feet all day, and that with this extensive standing he experienced increasing low back and left knee pain. Records of VA treatment in January and July 2007 reflect ongoing low back and left knee pain. In July 2007, Dr. V. noted that the Veteran's left knee was markedly symptomatic. Dr. V. planned on performing arthroscopy sometime in the future. The Veteran had left knee surgery in January 2008, and the RO assigned a temporary total rating from January through April 2008 for convalescence from the surgery. In March 2008 Dr. V. projected that the Veteran would be able to return to work, with some restrictions, after April 17, 2008. In April 2008 Dr. V. wrote that work restrictions would include avoiding any prolonged standing, walking, or running. Dr. V. did not address whether the Veteran could perform sedentary work. On May 19, 2008, Dr. F. stated that the Veteran's severe knee problems caused great difficulty with his occupation and employment status, which in turn contributed significantly to the development of depression. Dr. F. did not address whether the combined effects of the knee disabilities and depression made the Veteran unable to secure or follow a substantially gainful occupation. The records indicate that despite severe left knee pain the Veteran maintained employment in 2007 and until the January 2008 knee surgery. The SSA found that the Veteran was disabled from the surgery forward, but based that determination on both left knee disability and diabetes. Considering that Dr. V. initially indicated that the Veteran could return to work after the surgery, it was not factually ascertainable that, outside of the convalescence period, the Veteran's service connected disabilities made him unemployable at any point between May 22, 2007 and May 22, 2008. The preponderance of the evidence thus is against assignment of an effective date for TDIU earlier than May 22, 2008. CUE Claim The Veteran contends that there was CUE in a July 1988 rating decision in which the RO assigned a single 10 percent disability rating for left knee disability. A decision of a duly constituted rating agency is final and binding, except that a prior determination may be reversed or amended where the evidence establishes clear and unmistakable error. 38 U.S.C.A. §§ 5109A, 7105; 38 C.F.R. §§ 3.104, 3.105(a). The tests to determine whether there was clear and unmistakable error are: (1) either the correct facts, as the facts were known at the time, were not before the adjudicator, that is, more than a simple disagreement as to how the facts were weighed or evaluated, or the statutory or regulatory provisions existing at the time were incorrectly applied; (2) an error occurred based on the record and the law that existed at the time of the prior adjudication in question; and (3) the error was undebatable and of the sort which, had it not been made, would have manifestly changed the outcome. Russell v. Principi, 3 Vet. App. 310, 313-4 (1992). Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, which when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In determining whether there is clear and unmistakable error, the benefit-of-the-doubt standard of proof does not apply. The Veteran argues that the July 1988 rating decision was in error in that the RO should have assigned two separate ratings for his left knee disability; a 10 percent rating for arthritis and a 20 percent rating for instability. During service the Veteran sustained left knee injury. He received treatment included surgery. In March 1988, he submitted a claim for service connection for left knee disability. The Veteran's service medical records were associated with the claims file, and the Veteran underwent a VA medical examination in June 1988. In the July 1988 rating decision, the RO granted service connection for residuals of left knee injury. The RO assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257. The RO notified the Veteran of the determination and the right to appeal. The RO did not appeal the July 1998 rating decision, and it became a final decision. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104(a) (2012). A final and binding RO rating decision will be accepted as correct in the absence of CUE. Where the evidence establishes CUE, the prior decision will be reversed or amended, which has the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a). Under the law and regulations in effect at the time of July 1988 rating decision, disability ratings were determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1979); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (1988). If two ratings were potentially applicable, the higher rating was to be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating was to be assigned. 38 C.F.R. § 4.7 (1988). When evaluation of a musculoskeletal disability was based on limitation of motion, evaluation was to include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1988). Evaluation of the same disability under various diagnoses (pyramiding) was to be avoided. 38 C.F.R. § 4.14 (1988). The Veteran's service medical records show treatment in September 1983 for left knee strain. In treatment in 1985 for chronic left knee pain, the Veteran reported having been in a motorcycle accident in 1981. X-rays showed a loose body in the left knee. The Veteran underwent left knee surgeries in February 1986, March 1986, and January 1988. The 1988 surgery included removal of a loose body and meniscus repair. On VA examination in June 1988 the Veteran reported left knee pain aggravated by prolonged standing. The examiner observed that surgical scars were well healed. The Veteran had no limp with walking. The Veteran guarded his knee on full flexion and on squatting. The left knee had tenderness to mild pressure and had very slight swelling. Stress testing revealed mild lateral collateral ligament laxity. The range of motion of the left knee was from 0 to 130 degrees. Left knee x-rays did not show any abnormalities of the bones, joints, or soft tissues. In July 1988 the RO assigned a 10 percent rating for the left knee disability under Diagnostic Code 5257 (1988). That code provided for rating recurrent subluxation or lateral instability of the knee as 30 percent disabling if severe, 20 percent if moderate, and 10 percent if slight. At that time Diagnostic Code 5260 provided for a 0 percent rating for limitation of flexion of the knee to 60 degrees. Diagnostic Code 5261 provided for a 0 percent rating for limitation of extension of the knee to 5 degrees. 38 C.F.R. § 4.71a (1988). In a November 2009 statement, the Veteran asserted that there was CUE in the July 1988 rating decision because he was given only a 10 percent rating based on limitation of motion. He argued that he was entitled to a separate 10 percent rating for his arthritis. In an October 2010 statement, the Veteran contended that there was CUE in the July 1988 rating decision because he should have been assigned two separate ratings for his left knee disability, a 20 percent rating for instability and a 10 percent rating for arthritis. In a precedent opinion issued in 1997, the VA General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003, for arthritis, and 5257, for instability. VAOPGCPREC 23-97 (July 1, 1997). The General Counsel held that evaluation of knee disability under both of those diagnostic codes would not amount to pyramiding under 38 C.F.R. § 4.14. Id. The General Counsel indicated that for a separate rating to be assigned for arthritis in addition to a rating for instability the arthritis there must be limitation of motion that at least met the criteria for a 0 percent rating under Diagnostic Code 5260 or 5261. Id. In a precedent opinion issued in 1998, the General Counsel held that for knee disability rated under Diagnostic Code 5257 a separate rating for arthritis could be assigned based on x-rays findings and painful limitation of motion, even if the limitation of motion was noncompensable. VAOPGCPREC 9-98 (August 14, 1998). The Veteran does not argue that the correct facts as they were known in July 1988 were not before the RO. The claims file contained the service medical records and the report of a VA medical examination that addressed the condition of the Veteran's left knee. The Veteran argues that there was error of law, that the correct law was not applied to the facts. The law in effect in July 1988, however, called for avoiding rating the same disability under various diagnoses. General Counsel Precedent Opinions VAOPGCPREC 23-97 and VAOPGCPREC 9-98 that provided for assigning separate ratings for knee arthritis and knee instability were issued in 1997 and 1998, and were not in effect in July 1988. The RO applied the law that existed at the time, and did not commit an error of law. While those General Counsel Precedent Opinions were not part of the law that existed in July 1988, it is not clear that application of the principles in those opinions would have supported a different rating in July 1988. On the June 1988 rating decision the left knee was not limited to 60 degrees of flexion or to 5 degrees of extension. There was no observation of evidence of painful limitation of motion of the left knee, and left knee x-rays did not show arthritis. The July 1988 rating decision was made with consideration of the correct facts as known at the time, and was made by applying the law that existed at the time. Thus, there was not clear and unmistakable error in that decision. The Board denies the motion to reverse or revise that decision based on such error. ORDER Entitlement to an effective date earlier than May 22, 2008, for a TDIU is denied. The motion for reversal or revision of the July 1988 rating decision on the basis of CUE is denied. REMAND The Veteran reports that he sustained injuries of the left lower extremity during service when a vehicle struck him on the left side while he was on a motorcycle. Service connection is established for disabilities of the left knee and ankle. The Veteran has appealed the denial of service connection for disability of the left foot. He contends that his left foot was injured in service, or that disability in that foot developed as a result of altered gait caused by his service-connected left and right knee disabilities. The Veteran has had considerable treatment, including many surgeries, of his left knee during and since service. Medical records do not show complaints involving his left ankle and foot until a number of years after service. The Veteran reports of left foot pain are reflected, however, in a number of medical records from 2002 forward. On a VA examination in June 2010, left ankle x-rays showed an old fracture and post-traumatic arthritis. The claims file does not contain any record of x-rays of the Veteran's left foot. The VA physician who examined the Veteran in June 2010 was not provided with the Veteran's claim file for review. The examiner provided the opinion, based on statements and findings at that examination, that the Veteran did not have a current left foot disability. The Veteran's left ankle fracture history and arthritis were not documented until the 2010 x-rays, and the 2010 examiner provided an opinion without access to medical records that reflect the Veteran's left foot complaints over time. The Board will remand the left foot service connection issue for another VA examination to include review of the claims file, x-rays of the left foot, clarification of the existence and diagnosis of any left foot disorder, and opinion as to the likelihood that any current disorder is related to injury in service or to altered gait due to knee disabilities. The most recent VA treatment records also should be obtained. In January 2008, the Veteran requested an increased disability rating for his service-connected left knee disability, for which a 30 percent rating was in effect. In March 2008, he requested a temporary total rating following left knee surgery. In a March 2008 rating decision, the RO granted a temporary total rating, followed by a return to a 30 percent rating. In a May 2008 rating decision, the RO continued the 30 percent rating for the left knee disability. In June 2008, the Veteran filed a notice of disagreement with the denial in the May 2008 rating decision of an increased rating for the left knee disability. In a November 2009 statement, the Veteran contended that there was clear and unmistakable error (CUE) in the July 1988 rating decision that assigned a single 10 percent disability rating for left knee disability, rather than assigning separate ratings for different aspects of the disability. In a September 2010 rating decision, the RO found that there was no CUE in the July 1988 rating decision. In October 2010 the Veteran submitted a notice of disagreement (NOD) with the September 2010 rating decision regarding CUE. In October 2011 the RO issued a statement of the case (SOC) addressing the CUE issue. In November 2011 the Veteran submitted a substantive appeal regarding the CUE issue. The RO has not issued an SOC that addresses the Veteran's appeal of the May 2008 rating decision denying an increased rating for left knee disability. When a claimant files a timely NOD, the agency of original jurisdiction (in this case, the RO) must prepare and send to the claimant an SOC. 38 U.S.C.A. § 7105(d) (West 2002). The Court has indicated that, when a claimant submits an NOD, and the RO does not issue an SOC, the Board should remand the matter to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As the RO has not sent the Veteran an SOC addressing the claim for an increased rating for left knee disability, the Board remands the case to the RO to issue an SOC on that issue. In addressing the left knee rating claim, the RO may consider whether a more recent examination of that knee is needed. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case with regard to the claim for an increased disability rating (a rating in excess of the existing 30 percent rating) for the service-connected left knee disability. Advise the Veteran and his representative of the time limit in which he may file a substantive appeal as to that issue. If the Veteran files a timely substantive appeal, return the issue to the Board for appellate consideration, if otherwise in order. 2. Obtain records of all VA outpatient and inpatient treatment of the Veteran from October 2011 forward at VA health care facilities in Little Rock, Arkansas and Memphis, Tennessee. 3. Schedule the Veteran for a VA examination to address the nature and likely etiology of any disability of the left foot. Provide the examiner with the Veteran's claims file for review. Ask the examiner to obtain x-rays of the Veteran's left foot. Ask the examiner to review the claims file, examine the Veteran, review the x-ray report, and then state whether the Veteran has any diagnosable disorder of the left foot. If the examiner finds that there is no left foot disorder, the examiner should discuss whether any claimed symptoms of the left foot are attributable to disorder originating outside the foot, including intervertebral disc syndrome or type II diabetes mellitus. Ask the examiner to provide for each current left foot disorder an opinion as to whether it is at least as likely as not (a 50 percent or greater likelihood) that the disorder is attributable to injury in service or is causally related (i.e. caused by or aggravated by) service-connected disabilities, including disabilities of the left knee, right knee, and left ankle. Ask the examiner to provide a clear explanation of the reasoning leading to each opinion. 4. After completion of the above, review the expanded record and determine if the left foot service connection claim can be granted. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran has the right to submit additional evidence and argument on the matters that 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs