Citation Nr: 1318094 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-32 534 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a right knee disorder, secondary to service-connected bilateral pes planus. 2. Entitlement to service connection for a left knee disorder, secondary to service-connected bilateral pes planus. 3. Entitlement to service connection for a low back disorder, secondary to service-connected bilateral pes planus. 4. Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active military service from January 1971 to April 1975. These matters come before the Board of Veterans' Appeals (Board) from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Chicago, Illinois. The Veteran testified in October 2005 at a hearing conducted by a local RO hearing officer. In June 2009, the Veteran also presented testimony at a hearing conducted by the use of video conferencing equipment at the Chicago RO before the undersigned Veterans Law Judge sitting in Washington, D.C. Transcripts of both hearings have been associated with the Veteran's claims folder. The Board remanded this matter in June 2010 for additional development. As discussed further below, the Board's directives in relation to the claims seeking service connection for the right and left knee disorders and the low back disorder have not been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for bilateral knee disorders and for a low back disorder, each as secondary to service-connected pes planus, 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. The Veteran did not serve in combat, was not a prisoner of war (POW), and was not exposed to hostile military or terrorist activity while on active duty. 2. While the record contains a diagnosis of PTSD, it is not based on a verified in-service stressor and there is no credible supporting evidence that the PTSD stressor occurred as alleged. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by a letter sent to the Veteran in September 2004 with regard to the claim for service connection for PTSD. The letter addressed all notice elements and was sent prior to the initial unfavorable decision issued in March 2005. The duty to assist was also met in this case. The service treatment records are in the claims file. All pertinent VA and private treatment records have been obtained and associated with the file. VA examinations and opinions with respect to the PTSD claim were obtained in February 2005 and April 2011. 38 C.F.R. § 3.159(c)(4). 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). Notably, the February 2005 examiner diagnosed depressive disorder and opioid dependence and said that the criteria for PTSD were not met. The April 2011 examiner diagnosed opiate dependence, in partial remission, and Vicodin dependence, in partial remission, but found that the criteria for PTSD were not met. The April 2011 examiner provided reasoning for the lack of diagnosis of PTSD based on a full reading of the private and VA medical records in the Veteran's claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In June 2010, the Board remanded the issue of entitlement to service connection for PTSD and ordered the AMC/RO to contact the U. S. Army's Joint Services Records Research Center (JSRRC) to attempt to verify the Veteran's PTSD stressor. The AMC requested stressor verification from the National Archives and Records Administration (NARA) but not from the JSRRC. Per the VA Adjudication Procedure Manual, M21-1MR, Part IV, subpart ii, 1.D.15.b, when attempting to verify stressors for a Marine that served during the Vietnam Era and the Marine was not stationed aboard a Navy ship, requests are to be sent to NARA and not the JSRRC. Accordingly, the Board finds that the request to NARA complies with the directives in the June 2010 remand and that no further development is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110 (West 2002). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Service connection for PTSD requires: (1) medical evidence diagnosing the condition, (2) credible supporting evidence that the claimed, in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed, in-service stressor. In adjudicating a claim of entitlement to service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.304(f) (2012); see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" or was a POW as established by official records, including recognized military combat citations or other supportive evidence. If the VA determines that the veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f) ; Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, VA determines that the veteran did not engage in combat with the enemy or was a POW, or that the veteran engaged in combat with the enemy or was a POW, but the alleged stressor is not combat or POW related, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. § 3.304(f) was amended to redesignate former paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The provisions of this amendment apply to applications for service connection for PTSD, like the one in this case, that were appealed to the Board before July 13, 2010, but have not been decided by the Board as of July 13, 2010. Treatment records dated during the pendency of the Veteran's claim show diagnoses of PTSD and depressive disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a service connection claim for a mental disability is not restricted to the specific diagnosis alleged by the claimant, but includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and other information of record. However, the Clemons holding does not apply in this instance, as the facts of Clemons are distinguishable from the facts of this case. Unlike Clemons, in this case, the Veteran's depressive disorder has already been finally adjudicated by the RO. Specifically, during the pendency of this claim, the RO denied service connection for depressive disorder in October 2006 because the evidence did not show that the disorder had onset during or was related to service or the Veteran's service-connected bilateral pes planus. The Veteran asked for reconsideration and in November 2006, the RO confirmed and continued the denial of service connection for depressive disorder. The Veteran did not submit a notice of disagreement and did not submit new and material evidence in support of his claim prior to the expiration of the appeal period. Consequently, the October and November 2006 rating decisions became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). Therefore, for consideration of service connection for depressive disorder, the Veteran would need to file a claim to reopen service connection for non-PTSD psychiatric disorder(s) and submit new and material evidence pertinent to the claim. Here, the Veteran has not alleged a relationship between his depressive disorder and active service or service-connected pes planus since the November 2006 denial of service connection and has not otherwise raised the issue of whether new and material evidence has been received to reopen a claim for service connection for depressive disorder. Accordingly, the issue of service connection for depressive disorder is not included in the current PTSD claim under Clemons. Thus, the issue on appeal is limited to service connection for PTSD, as characterized on the first page of this decision. Analysis Since filing his claim, the Veteran has alleged that he has PTSD as a result of witnessing the hand of a fellow Marine being cut off in a mess hall accident sometime between 1972 and 1974. Treatment records, personal statements, and his testimony before the Board indicate that he helped treat the Marine and cleaned up the mess, including the meat grinder, which contained parts of the injured Marine's fingers. The Veteran has not been able to remember the name of the injured Marine, but remembers that he was from Hickory, North Carolina. The Veteran commented that he served in a flight squadron (VMAT-103) and that the injured Marine was assigned to the "H & SM-10" (base maintenance and supply squadron) at a base in Yuma, Arizona. In this case, some treatment records, including letters from physicians, show a diagnosis of PTSD, while other treatment records do not. For example, an October 2004 letter from a VA physician states that he was treating the Veteran for PTSD and opiate dependence. The physician said the Veteran had reported witnessing a fellow Marine lose his hand in a meat grinder. On the other hand, the February 2005 and April 2011 VA examination reports, among other treatment records, indicate that the Veteran did not meet the criteria for PTSD. The April 2011 VA examiner specifically found that the Veteran met the stressor criterion for PTSD but did not meet the other criteria as he did not express re-experiencing, avoidance, or hyperarousal symptoms. The report shows he met the criteria for opiate and Vicodin dependence, partially in remission; however, the examiner found that the drug use was not related to military service. It is important to note that the law provides that no compensation shall be paid if a disability is the result of a Veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2012); see also VAOPGPREC 2-97 (January 16, 1997). Since the evidence shows a possible diagnosis of PTSD based on the reported stressor, the Board's primary concern is whether the Veteran's alleged stressor can be verified since he does not claim and his personnel records do not show that he served in combat or was a POW. Further, his stressor does not stem from fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f). Accordingly, the Veteran's lay statements alone are insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates his statements. Cohen, 10 Vet. App. 128. Notably, the Veteran said a sergeant, W. P. III, might be able to corroborate his stressor; however, he has not submitted a statement from W. P. III for review. The RO and AMC attempted to verify his stressor; however, the attempts were not successful. A July 2007 VA Memorandum, entitled "Formal Finding on a lack of information required to verify stressful events described by the Veteran for service connection for Post Traumatic Stress Disorder" states that since the Veteran was unable to name the soldier who was allegedly injured or to supply the soldier's unit, that the claimed stressful incident could not be verified. The Memorandum added that for the event to be researched the Veteran needed to provide the name of the injured individual (first and last name), the date of the event (within 60 days), and the individual's unit. In June 2010 per the Board's directives, the AMC asked the Veteran to provide additional details regarding his stressor incident, including specific dates, locations, and the names of witnesses. The Veteran did not respond and in October 2010, the AMC asked NARA to research the accident reported by the Veteran and to provide investigative reports. The Veteran and injured Marine's units were noted and a date range of 1972 to 1973 was provided. A second request was sent to NARA in February 2011, which asked NARA to search records for the injured Marine's unit from March 15, 1972 to January 31, 1973, the dates the Veteran was assigned to VMAT-103. In February 2011, NARA indicated that for most stateside units, the unit command chronologies contain little detail, relate mostly to public relations matters, and almost never document accidents or incidents as described by the Veteran. NARA found no information relevant to the AMC's inquiry. In March 2011, the AMC made a formal finding that the available information was insufficient to send to JSRRC and/or insufficient to allow for meaningful research of the Marines Research Center and/or NARA records. The AMC found that efforts to obtain the needed information had been exhausted and that further attempts would be futile. Based on the evidence of record, service connection for PTSD is not warranted. While there is evidence that the Veteran has been diagnosed with and treated for PTSD during the pendency of his claim, the record does not include credible and persuasive supporting evidence verifying the occurrence of the Veteran's claimed in-service stressor. As noted above, since the Veteran was not in combat or a POW, and since his stressor does not involve fear of hostile military or terrorist activity, his stressor must be corroborated by other credible sources. While the Veteran said W. P. III might be able to corroborate his stressor, he did not provide a statement from W. P. III in support of his claim. Further, the RO and AMC's attempts to verify his stressor have been unsuccessful. Since the Veteran's alleged stressor has not been verified, the elements required for entitlement to service connection for PTSD are not met. As such, the claim for service connection for PTSD must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is denied. REMAND In June 2010, the Board remanded the claims seeking service connection for right and left knee disorders and a low back disorder, each claimed as secondary to service-connected pes planus, for additional development. Unfortunately, the remand directives have not been substantially complied with. In accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. See Stegall, 11 Vet. App. 268 (1998). Regarding the knees, in June 2010 the Board found that VA and private medical reports provided conflicting etiological opinions and that the medical opinions of record needed to be reconciled. Specifically, a VA medical provider in January 2000 commented that the Veteran's knee problems "may be" attributable to his feet adjusting in a more corrected position. A private podiatrist in October 2004 opined that the Veteran's abnormal foot structure "aggravates" his knees. Also, in the January 2005 VA orthopedic examination report, where the diagnoses included bilateral flat feet and mild arthritis in the knees, the examiner opined that the Veteran's knee disorders were less likely than not related (due to or aggravated by) his service-connected flat foot disorder. Conversely, a private physician, in October 2007 and April 2008 opined that it was as likely as not that the Veteran's bilateral knee disorder was caused by his service-connected bilateral foot disorder. In addition, a VA podiatrist in July 2009 opined that the Veteran's knee problems "could be secondary" to his feet. In the June 2010 remand directives, the Board ordered the AMC/RO to schedule the Veteran for a VA examination and to request an opinion addressing whether it is at least as likely as not that any diagnosed right and/or left knee disorders are caused or aggravated by the service-connected bilateral pes planus. The Board ordered the examiner to address the conflicting medical evidence/opinions, which include both positive and negative opinions as to a secondary nexus relationship between the Veteran's claimed bilateral knee disorders and his service-connected bilateral pes planus. The examination was conducted in June 2010. The examiner opined that the bilateral knee disorders were less likely than not caused or aggravated by the service-connected pes planus and were related to his obesity and normal aging process. No rationale for the opinions was provided and the examiner did not address the conflicting opinions addressed herein. Therefore, the Board must return this examination report as being inadequate for rating purposes. 38 C.F.R. § 4.2. See generally Hampton v. Gober, 10 Vet. App. 481 (1997) (VA examination which does not contain an express finding regarding a disability for which an examination was requested is not sufficient to satisfy the duty to assist). On remand, the AMC/RO must request an addendum opinion from the June 2010 examiner or another qualified examiner if the June 2010 examiner is not available. The examiner must be asked to reconcile the medical opinions of record and to opine whether the Veteran's right and/or left knee disorders are proximately due to or the result of his service-connected bilateral pes planus. A medical opinion is also needed as to the degree of aggravation, if any, to the Veteran's right and/or left knee which is proximately due to, or the result of, his service-connected bilateral pes planus. Allen v. Brown, 7 Vet. App. 439, 448 (1995). See also 38 C.F.R. § 3.159(c)(4) (2012). The examiner must be informed that all opinions must be supported with rationale. Regarding the low back, in June 2010 the Board observed conflicting evidence as to a possible secondary relationship between the Veteran's claimed low back disorder and his service-connected bilateral pes planus. Specifically, a VA progress note dated in January 2000 includes a comment indicating that the Veteran's back problems, in essence, "may be" due to his feet adjusting to a more corrected position. In October 2004 a private podiatrist opined that the Veteran's abnormal foot structure aggravated his back. Conversely, in a January 2005 VA orthopedic examination report, the examiner opined that the Veteran's diagnosed lumbosacral strain was less likely than not related (due to or aggravated by) his service-connected flat foot disorder. Also, in October 2008, a VA physician opined that it was less likely than not that the Veteran's service-connected bilateral pes planus caused his lumbar spine degenerative joint disease. Finally, a VA physician in June 2009 commented that the Veteran's degenerative arthritis of the lumbar spine with radicular pain to the left leg and persistent low back pain was "exacerbated" as a consequence of his painful foot disturbance and the abnormal lumbar spine posture secondary to the foot disturbance. He added that there existed an inter-relationship between the Veteran's claimed lumbar spine disorder and his service-connected bilateral pes planus. In the June 2010 remand directives, the Board ordered the AMC/RO to schedule the Veteran for a VA examination and to request an opinion addressing whether it is at least as likely as not that any diagnosed lumbar spine disorder is caused or aggravated by the service-connected bilateral pes planus. The Board ordered the examiner to address the conflicting medical evidence/opinions, which include both positive and negative opinions as to a secondary nexus relationship between the Veteran's claimed low back disorders and his service-connected bilateral pes planus. The examination was conducted in June 2010. The examiner opined that it is less likely than not that the spine disorder was caused or aggravated by pes planus. The examiner said "pes planus is a congenital disorder, and there is no cause-and-effect relationship between the knees and the lumbar spine." The examiner also opined that the condition is related to the Veteran's obesity and the normal aging process and not his service-connected pes planus. These opinions are not adequate for rating purposes because the opinions are not supported by adequate rationale and the examiner did not address the conflicting opinions discussed herein. Therefore, the Board must return this examination report as being inadequate for rating purposes. 38 C.F.R. § 4.2. See generally Hampton, 10 Vet. App. 481. On remand, the AMC/RO must request an addendum opinion from the June 2010 examiner or another qualified examiner if the June 2010 examiner is not available. The examiner must be asked to reconcile the medical opinions of record and to opine whether the Veteran's low back disorders are proximately due to or the result of his service-connected bilateral pes planus. A medical opinion is also needed as to the degree of aggravation, if any, to the Veteran's low back which is proximately due to, or the result of, his service-connected bilateral pes planus. Allen , 7 Vet. App. at 448. See also 38 C.F.R. § 3.159(c)(4). The examiner must be informed that all opinions must be supported with rationale. Accordingly, the case is REMANDED for the following action: 1. The RO must send the claims folder, copies of pertinent records located in the Virtual VA electronic claims folder, if any, and a copy of this REMAND, to the examiner that conducted the June 2010 VA examination. After reviewing these items, the examiner should provide an addendum opinion addressing the following: a. Is it at least as likely as not that any diagnosed right and/or left knee disorders are caused OR aggravated by the service-connected bilateral pes planus? b. Is it at least as likely as not that any diagnosed lumbar spine disorder is caused OR aggravated by the service-connected bilateral pes planus? In offering any opinion, the examiner must specifically address the above-discussed conflicting medical evidence/opinions, which include both positive and negative opinions as to a secondary nexus relationship between the Veteran's claimed bilateral knee and low back disorders to his service-connected bilateral pes planus. Note: The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. If the June 2010 examiner is not available, another qualified examiner should be asked to provide the requested addendum opinions. All opinions must be supported by rationale. A physical examination should not be scheduled unless the examiner indicates that one is necessary prior to rendering the requested opinions. 2. Thereafter, the RO must review the claims folder and ensure that the VA examination addendum opinions are in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. When the requested development has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The SSOC should set forth all applicable laws and regulations pertaining to each issue. They should then be afforded an applicable time to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this remand is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. 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). 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs