Citation Nr: 1317851 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 06-13 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to service-connected meniscus tear of the left knee and/or service-connected status post fracture of the right distal fibula with a fracture of the lateral malleolus of the right ankle. 2. Entitlement to service connection for cellulitis of both feet. 3. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran had active military service in the United States Navy from July 1975 to July 1981 with additional service in the United States Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) is from July 2005 and June 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The July 2005 rating decision granted service connection for status post fracture of the right distal fibula with a fracture of the lateral malleolus of the right ankle and assigned an initial noncompensable (0 percent) rating for the disability, effective January 14, 2005. Such rating decision also denied the Veteran's claims of entitlement to service connection for cellulitis of both feet, a left shoulder disorder, bilateral hearing loss, and tinnitus. The issue of entitlement to service connection for a low back disorder is on appeal from a June 2009 rating decision. In a January 2010 rating decision, the RO increased the disability rating for the status post fracture of the right distal fibula with a fracture of the lateral malleolus of the right ankle to 10 percent, effective January 14, 2005, the date of the Veteran's claim. The Veteran withdrew this claim from appeal in a written statement received in February 2010 and the Board dismissed such issue in a November 2012 decision. In November 2012, the Board also remanded service connection claims for low back disorder, bilateral hearing loss, tinnitus, left shoulder disorder and skin disorder of both feet to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. By means of a rating decision dated February 2013, the RO granted service connection for hearing loss and tinnitus, and assigned initial disability ratings and effective dates of award. This decision terminates the Board's jurisdiction over those claims. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Veteran testified at a hearing before a Decision Review Officer at the RO in November 2008. He also testified before the undersigned Veterans Law Judge sitting at the RO in August 2012. Transcripts of both hearings are contained in the claims file. A review of the Virtual VA electronic records storage system reveals additional VA clinic records dated to August 2012 which are not associated with the paper claims folder. The agency of original jurisdiction (AOJ) has considered these records in the February 2013 supplemental statement of the case (SSOC). In a statement received in March 2013, the Veteran raised the issue of entitlement to service connection for an acquired psychiatric disorder as secondary to his service-connected disabilities. This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over the claim and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for low back and left shoulder disorders are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC in Washington, D.C. FINDING OF FACT The Veteran's in-service treatment for cellulitis of the foot resolved without sequelae, and his currently diagnosed stasis dermatitis is not shown to have been manifested during active service or causally related to an event during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for cellulitis of both feet have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented in part at 38 C.F.R. § 3.159 (2012), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the AOJ. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to the cellulitis claim, the AOJ provided pre-adjudication VCAA notice by letter dated in February 2005. The Veteran was notified of the evidence needed to substantiate the claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. He was also advised of multiple sources of evidence which might help to substantiate the claim. The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorizes VA to obtain private medical records on his behalf. A post-adjudicatory notice in March 2006 notified the Veteran of the provisions for the effective date of the claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). The notice was deficient to the extent that the Veteran was not provided pre-adjudicatory notice regarding the downstream elements of a service connection claim as required by Dingess. However, this timing deficiency is not prejudicial as these issues are not implicated in the appeal. Additionally, the timing deficiency was cured with readjudication of the claim in the March 2006 statement of the case (SOC) and February 2013 supplemental SOC (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The AOJ has obtained the Veteran's service treatment records (STRs) for his period of active duty from July 1975 to July 1981. The AOJ was unable to obtain complete records from the Veteran's service in the Army National Guard. In August 2009, the AOJ made a formal finding of unavailability of these STRs, and notified the Veteran of those unavailable records in August 2009. Notably, the February 2005 VCAA letter contained notice of the alternative types of records which could help supplement missing STRs. Additionally, the Veteran has not claimed treatment for cellulitis during his Army National Guard service. He also denies being provided a separation examination as this was a period of active duty for training (ACDUTRA). The AOJ has also obtained all VA clinic records identified by the Veteran, and all relevant private medical records for which the Veteran has identified and authorized VA to obtain on his behalf. The Board is unaware of any relevant records in the possession of the Social Security Administration, and the Veteran has not identified any other pertinent records for the AOJ to obtain on his behalf. Under 38 U.S.C.A. § 5103A(d), VA must obtain examination or opinion when necessary to decide the claim. The Veteran was afforded a VA examination in January 2012 and the Board remanded this case in November 2012 for an addendum opinion as to whether the Veteran's current skin disorder of the lower extremities is the same skin disorder manifested in service. The opinion obtained, dated January 2013, fully addressed the question posed by the Board. Therefore, the Board finds that such VA examination and addendum opinion is adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issues decided herein has been met. The Board further finds that the AOJ has complied with the Board's remand directives. In this respect, the AOJ obtained updated VA treatment records and sent the Veteran a letter in November 2012 asking him to identify any additional relevant records. In response, he indicated that all his treatment was through VA. Additionally, the AOJ obtained an adequate VA medical opinion in January 2013 and readjudicated the claim in the March 2013 supplemental statement of the case, as directed in the November 2012 remand. As such, the Board finds that the AOJ has substantially complied with the Board's earlier remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2012 Board hearing, the Veteran was assisted at the hearing by an accredited representative and that representative and the undersigned asked questions to ascertain the extent of any in-service event or injury, the type of symptomatology experienced by the Veteran, his treatment history, and the availability of any pertinent records. Moreover, the Board remanded the case in November 2012 in order to obtain any outstanding records and obtain an addendum opinion regarding the etiology of the Veteran's cellulitis. Thus, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative that was not obtained while the appeal was in remand status or is not available. Moreover, the hearing focused on the elements necessary to substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). To the extent that there were any deficiencies, they were cured with the Board's November 2012 remand for outstanding records and an addendum opinion. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Legal criteria The Veteran seeks to establish his entitlement to service connection for cellulitis of the feet. He claims that his current swelling symptoms of the lower extremities are the same condition of cellulitis treated in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active peacetime service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(a). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Cellulitis and stasis dermatitis are not listed among the chronic diseases under 38 C.F.R. § 3.309(a). A Veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. The plain language of 38 U.S.C.A. § 1111 requires that there be an examination prior to entry into the period of service on which the claim is based. Jones v. Shinseki, 24 Vet. App. 40, 45 (2010). When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In deciding whether a condition preexisted service, the Board must consider the Veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304(b)(1), (2). Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "Veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C.A. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203, limiting the type of evidence accepted to verify service dates. A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA. 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993). The presumption of soundness under 38 U.S.C.A. § 1111 does not apply when a claimant, Veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112 and the presumption of aggravation under 38 U.S.C.A. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id. See also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "Veteran" by virtue of ACDUTRA service alone. Id. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. 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 Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran served on active duty from the United States Navy from July 1975 to July 1981. In pertinent part, in August 1977, he fractured his right distal fibula and right ankle after falling from a brow to a concrete pier platform. In April 1978, the Veteran described right ankle symptoms of pain, swelling, discoloration, stiffness with cold or rainy weather, and difficulty using stairs. In March 1979, the Veteran presented to sickbay due to excruciating "left" foot pain with an inability to bear weight. Examination demonstrated a small amount of swelling and redness of the "left" foot with extreme point tenderness and limited range of motion. He was initially given an assessment of "? Cellulitis/gout." A treatment record the next day recorded the Veteran's history of "left" ankle fracture followed by persistent pain and frequent swelling, especially after prolonged standing or walking. He also had an episode of cellulitis involving the right foot treated with compression and elevation. Examination demonstrated some fullness with hyperpigmentation along the Achilles tendon as well as full range of motion (FROM) with tenderness on motion. He was referred to the Naval Hospital at Guantanamo Bay due to inflammation with a temperature difference. The Veteran was hospitalized for 12 days due to a diagnosis of cellulitis of the "right" foot treated with Oxacillin. In July 1979, the Veteran was diagnosed with post-tibial tendonitis of the right ankle. The Veteran's May 1981 discharge examination provided normal clinical evaluations for all bodily systems except for the history of right ankle fracture and identifying body marks. Thereafter, the Veteran's treatment records are silent for a recurrence of cellulitis. A February 2005 progress record (containing barely legible handwriting) includes a reference to left toe swelling and gout. A June 2005 VA examination reflected the Veteran's history of right ankle fracture in 1977 and right cellulitis in 1979 due to a cut. He endorsed a history of having swelling of his entire right leg with walking. Examination demonstrated a 1/4 edema of the right leg. In a statement received in April 2006, the Veteran described recurrent symptoms of cellulitis since service which he self-treated with leg elevation, rest and over-the-counter medications. At an RO hearing in November 2008, the Veteran reported developing cellulitis of the left foot in service as a result of stepping on some coral while ocean swimming. Thereafter, the Veteran experienced recurrent symptoms of left foot swelling which he self-treated with hot and cold soaks, elevation and aspirin. The Veteran further described recurrent episodes of right ankle inversions with loss of motion, swelling and episodes of give-way. He described having difficulty with walking without picking up his right foot. A VA skin examiner in January 2012 included the Veteran's report of being hospitalized in service due to cellulitis. He further reported experiencing swelling with brownish discoloration of the feet and ankles after rolling his ankle. Examination demonstrated brownish/red "cayenne pepper" appearing macules on the lower legs, ankles and feet. There was no swelling, edema or signs of infection. The examiner diagnosed stasis dermatitis, and found this condition was less likely as not due to inservice injury. The following rationale was provided: This patient does not currently have cellulitis. The condition for which he was treated for during the military is unrelated to his current diagnosis, which is stasis dermatitis or Schamberg's pigmented purpuric dermatosis. This condition is easily treated with elevation, compression hose, and topical steroids as needed. At his Board hearing in August 2012, the Veteran provided further testimony that he experienced recurrent episodes of cellulitis, manifested by lower extremity pain and swelling, since service which he self-treated with hot and cold treatment as well as elevation. These episodes occurred about once per year. In January 2013, a VA skin examiner provided the following clarifying addendum opinion: The patient was treated for cellulitis in the military, but has not had that condition since and does not have it now. He has no residual skin changes from the cellulitis. At this time, he has an entirely different condition, totally unrelated to the cellulitis for which he was treated in 1979 and cured. The present condition is related to increased fluid in the legs, which can be caused by many things, including varicose veins, heart disease, lung disease, kidney disease, etc. The cellulitis was a one time thing, completely cured. On review of the entirety of the record, the Board finds that the probative evidence establishes that the Veteran's in-service treatment for cellulitis of the foot resolved without sequelae, and that his currently diagnosed stasis dermatitis is not shown to have been manifested during active service or causally related to an event during active service. Here, the Veteran was clearly treated for cellulitis of the foot in 1979. This was a definitive diagnosis based upon hospitalization and treatment with Oxacillin. Thus, the dispositive issue on appeal concerns whether the Veteran has manifested a chronic cellulitis disability that is related to his military service, to include his treatment for such in 1979. The available evidence includes a formal military examination in May 1981 which reflected normal clinical findings for all pertinent bodily systems, and the post-service record does not disclose any specific treatment for cellulitis. Overall, the service and postservice medical records are not consistent with a finding of a chronic cellulitis disability being present since service. The only evidence tending to support a finding that the Veteran manifests a chronic cellulitis disability is the description of symptomatology by the Veteran himself. Clearly, the Veteran is competent to describe outwardly demonstrated and subjectively experienced symptoms. However, the Veteran is not competent to diagnose his symptoms as cellulitis, particularly in a case such as this where the record suggests other potential etiologies for his claimed symptoms. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In particular, a VA skin examiner has examined the Veteran and the claims folder contents to arrive at a conclusion that the Veteran's current lower extremity swelling symptoms are attributable to stasis dermatitis. This examiner explained that stasis dermatitis is considered a different disease process than cellulitis which is "totally unrelated" to cellulitis treated in service. The examiner further observed that there were no residual skin changes attributable to the cellulitis treated in service. Finally, the examiner explained that the Veteran's current stasis dermatitis is due to increased fluid in the lungs which could be attributable to multiple, nonservice-connected underlying diseases processes. Overall, the Board finds that the opinion of the January 2012 VA examiner (with addendum in January 2013) holds significantly greater probative weight than the Veteran's personal opinion and self-diagnosis, as the VA examiner has greater expertise and training than the Veteran in speaking to the physical characteristics of various skin disorders and their etiology. In so finding, the Board notes that cellulitis and stasis dermatitis are not deemed chronic diseases under 38 C.F.R. § 3.309(a). Nonetheless, the VA examiner has demonstrated an understanding of the Veteran's skin descriptions before and after service and has concluded that the Veteran does not describe a recurrence of cellulitis since service. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the Board recognizes that the Veteran does manifest a disability involving swelling of the lower extremities, but finds that the current disorder of stasis dermatitis first manifested many years after service and is unrelated to treatment for cellulitis in service. Finally, the Board acknowledges that the Veteran had intervening periods of ACDUTRA and INACDUTRA service since his treatment for cellulitis in 1979. The Veteran does not allege, and the evidence does not suggest, that cellulitis was incurred or aggravated during a period of ACDUTRA and INACDUTRA service. Thus, there is no factual or legal basis to consider this potential service connection theory. See generally Smith, 24 Vet. App. 40 (2010). Accordingly, the Board finds that the Veteran's in-service treatment for cellulitis of the foot resolved without sequelae, and that his currently diagnosed stasis dermatitis is not shown to have been manifested during active service or causally related to an event during active service. Thus, the Veteran's service connection claim for cellulitis of the feet may not be granted. There is no reasonable doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection for cellulitis of both feet is denied. REMAND The Board regrets any further delay in adjudicating the low back and left shoulder disorder claims, but finds that the AOJ has not complied with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated). With respect to the low back disorder, the Board's November 2012 remand requested an addendum medical opinion which addressed whether the Veteran's low back disorder was related to a service-connected falling injury in 1990 or, alternatively, aggravated by his service-connected left knee and right ankle disabilities. The VA opinion obtained, dated in December 2012, did not address the aggravation component of the Board's opinion request. With respect to the left shoulder disorder, the Board's November 2012 remand requested an examination and medical opinion as to whether the Veteran manifested osteoarthritis of the left shoulder and, if so, whether it was related to inservice injury in August 1977. It was further requested that the VA examiner "consider and address" a June 2007 private medical opinion to the effect that the Veteran's injury in 1977 resulted in current osteoarthritis. A VA examiner in December 2012 offered a current diagnosis of chronic left shoulder bursitis with anterior rotator cuff tear, and offered an opinion that the Veteran's injury in August 1977 had not continued to progress to a diagnosis of osteoarthritis. The examiner did not consider whether the left shoulder bursitis with anterior rotator cuff tear may be attributable to the in-service injury, or address the June 2007 private medical opinion. In view of the foregoing, the Board finds that clarification of the December 2012 VA examiner's opinions is necessary in the instant case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). If the original examiner is unavailable, then the requested opinion should be obtained from another appropriately qualified clinician. If a new examination is deemed necessary, then one should be conducted. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2012 VA spine and shoulder examinations for an addendum opinion. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the December 2012 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the record, the examiner should offer opinions on the following: a) provide opinion as to whether it is at least as likely as not that the diagnosed left shoulder bursitis with anterior rotator cuff tear is etiologically related to the Veteran's active military service, to include as a result of his documented August 1977 fall. In providing this opinion, the examiner should consider the following: * the Board's factual finding that the Veteran's account of a left shoulder injury during an August 1977 fall is credible; * a February 2005 private progress record (containing barely legible handwriting) referencing a history of left shoulder pain with numbness of the left hand of 3-4 months duration as well as a Humvee explosion with physical findings significant for left shoulder crepitus and x-ray examination interpreted as showing no significant abnormalities for the Veteran's age, gender and habitus; * an April 2006 written statement from the Veteran wherein he described his left shoulder injury as a sudden, jerking movement when attempting to maintain his balance which resulted in a history of recurrent twinges which had become more pronounced over the years; and * a June 2007 private physician opinion reporting that, in February 2005, the Veteran's left shoulder demonstrated crepitus and evidence of impingement syndrome, and that the crepitus was associated with osteoarthritis is more likely than not resulting from the inservice injury. b) Is it at least as likely as not that the Veteran's current low back disorder is related to his active military service, to include his October 1990 fall from a telephone pole; (c) Is it at least as likely as not that the Veteran's currently diagnosed low back disorder is permanently aggravated (i.e., increased in severity beyond the natural progression) by his service-connected meniscus tear of the left knee and/or his service-connected status post fracture of the right distal fibula with a fracture of the lateral malleolus of the right ankle? In providing this opinion, the examiner should consider the following: * the Board's factual finding that the Veteran's account of a low back injury during an October 1990 pole fall is credible; * a December 1992 private treatment record which recorded the Veteran's complaint of low back pain of 1 months' duration, and denial of a prior history of back problems or known injury, assessed as questionable (?) acute lumbar strain; * the Veteran's November 2008 testimony of recurrent episodes of right ankle inversions with loss of motion, swelling and episodes of give-way as well as difficulty with walking without picking up his right foot; * a February 2009 private medical record stating that the Veteran experienced low back pain which was provoked and exacerbated with walking due to right ankle and knee pathology; * a June 2009 VA clinic record noting that the Veteran ambulated with a mildly waddling type gait and right foot eversion; * a July 2010 private physician opinion attributing the Veteran's chronic back pain and sciatica to the 1977 and 1990 service injuries, and the altered gait produced by these prior injuries, which had stressed the low back producing late sequelae; and * a January 2011 VA examination observing a normal gait with no evidence of abnormal weight bearing, and attributing the etiology of the Veteran's low back disability to stressful mechanics caused by obesity. The examiner should provide supporting rationale for the opinion expressed. The examiner must discuss the relative merits of the June 2007 and July 2010 private medical opinions supportive of the claim. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs