Citation Nr: 1320707 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-29 214 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to an initial, compensable disability rating for bilateral pes planus with disfigured toenails. 6. Entitlement to an initial, compensable disability rating for status post lateral meniscectomy and debridement of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from July 2001 until May 2006. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2006 rating decision in which the RO, inter alia, denied service connection for a left knee condition (claimed as bilateral knee condition), a bilateral ankle condition and a neck condition. The RO also granted service connection and assigned an initial, 0 percent (noncompensable) rating, each, for a status post partial lateral meniscectomy and debridement (claimed as bilateral knee condition) of the right knee and bilateral pes planus with disfigured toenails, fifth toenail, effective May 27, 2006. In January 2007, the Veteran filed a notice of disagreement (NOD) with regard to the denials of service connection for a left knee condition, a bilateral ankle condition and a neck condition. The Veteran also filed an NOD with the noncompensable ratings assigned for right knee disability and bilateral pes planus with disfigured toenails. The RO issued a statement of the case (SOC) in August 2007 and reissued the SOC in June 2009 so that it could be mailed to the Veteran's updated address. The RO then issued a July 2009 supplemental SOC (SSOC) for the left knee disability and a separate July 2009 SSOC for the higher rating claim for a right knee disability. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in August 2009. The RO issued a SSOC for all the issues in May 2012. In February 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington, DC; a transcript of that hearing is of record. During the hearing, the Veteran submitted additional evidence, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Also during the hearing, he Veteran requested, and the undersigned granted, a 30-day abeyance period for submission of additional evidence in support of the claims on appeal. In March 2013, the Veteran, through his representative, submitted additional medical evidence in support of his appeal; this evidence was also accompanied by a signed waiver of initial RO consideration of the evidence. Id. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. As a final preliminary matter, the Board notes that the claims file reflects that the Veteran was previously represented by the Veterans of Foreign Wars (as reflected in a March 2006 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In February 2010, the Veteran filed a new VA Form 21-22, appointing Disabled American Veterans as his representative. The Board has recognized the change in representation. The Board's decisions on the claims for service connection for a cervical spine disability, a left knee disability and for right and left ankle disabilities are set forth below. The remaining claims on appeal are addressed in the remand following the order. These matters are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, a right ankle disability. 3. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, a left ankle disability. 4. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, a neck disability. 5. Competent, probative evidence does not indicate that the Veteran has, or, at any time pertinent to this appeal has had, a left knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 201); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 201); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for service connection for a neck disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 201); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 4. The criteria for service connection for a left knee disability are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 201); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations 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)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice 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-compliant 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.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339(Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a July 2006 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claims for service connection for a right ankle disability, left ankle disability, neck disability, and a left knee disability, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. That letter also informed the Veteran to submit any evidence in his possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The July 2006 letter also provided the Veteran with general information pertaining to VA's assignment of disability rating and effective date, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The November 2006 rating decision reflects the initial adjudication of the claim after issuance of the July 2006 letter. Therefore, the July 2006 letter meets the VCAA's content and timing requirements for the ankle and neck disabilities. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent evidence associated with the claims file consists of in-service treatment records. The Veteran has not identified any post-service treatment records for a right ankle disability, left ankle disability, neck disability or left knee disability. The Veteran also underwent a VA examination in August 2006. The Veteran underwent another VA examination for the left knee in March 2009. For reasons expressed below, the Board finds that these examination reports are adequate for adjudication purposes. Also of record and considered in connection with the appeal is the transcript of the February 2013 Board hearing, along with various statements provided by the Veteran, as well as by his representative on his behalf. The Board finds that no additional action to further develop the record in connection with any claim herein decided, prior to appellate consideration, is required. Specifically as regards the Board hearing, it is noted that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, the undersigned Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims. The Veteran reported that he self treated himself for his feet by buying insoles for his shoes and implied that he did not seek medical treatment for his ankles. Additionally, he reported that he did not receive treatment for his cervical spine, but cracked his back himself. The Veterans Law Judge also provided the Veteran 30 days to obtain a new letter from his private medical provider, if he so desired. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the Veteran's claims decided herein. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board hearing was legally sufficient. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Unfortunately, in this appeal, each claim must be denied on the basis of current disability. At the outset, it is noted that all of the evidence in the Veteran's claims file (paper and electronic) has been reviewed. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that every item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Right and Left Ankle Disabilities The Veteran's service treatment records do not document any complaints of, or treatment for, either the right or left ankle. Following his separation from service in May 2006, the Veteran underwent an August 2006 VA examination. The Veteran reported bilateral ankle pain since 2005 due to constant physical training, but that it was unrelated to a specific injury. The Veteran reported intermittent pain, denied incapacitation and medication, and treated himself with footpads and ankle support. His functional impairment was an inability to run. The August 2006 VA examiner found that both ankles were normal, with no weakness, tenderness, abnormal movement, guarding, or ankylosis. The examiner noted that the bilateral ankle X-rays were normal and that the physical examination was normal. The examiner thus found no pathology to render a diagnosis. In his January 2007 NOD, the Veteran contended that his daily responsibilities of being in the Army caused physical wear and tear that damaged his body, including his ankles. During his February 2013 Board hearing, the Veteran reported that his ankles did not swell, but that he would have pain with cracking. He also reported that his ankle pain would move up from his feet to his ankles. The Veteran has not claimed, and the record does not indicate, that he has been medically treated for either ankle. Although the Veteran perfected a claim for service connection for right and left ankle disabilities, the claims file does not document any diagnosed disability of either ankle, and the August 2006 VA examiner found no pathology of the ankles from which to render a diagnosis. Although, admittedly, the examiner did not review the claims file, the examiner's conclusion was based upon current examination findings and testing results. The examiner also considered the Veteran's reported history. The Board also points out that, in this case, having the claims file would not have changed the facts that, with respect to his ankles, there is otherwise no medical indication of current disability, and the 2006 examination results were normal. Here, the medical evidence of record, to include the August 2006 VA examination report, simply does not support a finding that the Veteran has, or ever has had, a right and/or left ankle disability. Rather, the record reflects no more than the Veteran's own, unsubstantiated reports of chronic right and left ankle pain during and since service. The Board notes that the Veteran, as a layperson, is competent to report that he has had feelings of ankle pain, as he did during his Board hearing. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, pain, alone, without underlying pathology, does not constitute a disability upon which to predicate award of service connection. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), vacated in part and remanded on other grounds sub. nom. Sanchez-Benitez v. Principi, 239 F. 3d 1356 (Fed. Cir. 2001). The Board emphasizes that the claim under consideration turns, fundamentally, on the matter of whether the Veteran has the right and left ankle disabilities for which service connection is sought, and, if so, whether there exists a medical relationship between such current disabilities and service. Diagnosis and etiology of complex disabilities not capable of being established on the basis of lay observation or other sensory perception, alone, are matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on any medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, lay assertions as to diagnosis or as to etiology have no probative value in this appeal. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. §§ 3.303, 3.304. Thus, where, as here, competent, probative evidence does not establish that the Veteran has the disability for which service connection is sought; there can be no valid claim for service connection. Consequently, the claim for service connection for right and left ankle disabilities must be denied because the first essential criterion for service connection-evidence of current disability-has not been met with respect to either ankle. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Neck Disability A March 8, 2004 service treatment record documents a complaint of head and neck pain. The examiner noted a complaint of a hyperflexion injury during an assault three days previously, when the Veteran's head was pushed from behind into a wall. The examiner diagnosed the Veteran with a muscle strain secondary to hyperflexion. A March 15, 2004 service treatment record noted that the Veteran's treatment with muscle relaxants had been effective. At that time, the Veteran's pain complaints did not include a complaint of neck pain. The examiner did not diagnose the Veteran with muscle strain again or any other neck disorder. Subsequent service treatment records do not document any further complaints of, or treatment for, the neck. In a February 2006 annual examination report of medical history, the Veteran denied having a painful shoulder, recurrent back pain and any back problem. Following his May 2006 separation from service, the Veteran underwent an August 2006 VA examination. The Veteran reported that he had a stiff neck in 2003 that had reoccurred for the last three years. He reported weekly pain symptoms relieved with medication and rest and difficulty moving his head. The August 2006 VA examiner assessed a normal neck examination. The examiner further noted tenderness of the cervical spine, but no restricted range of motion or ankylosis. The examiner found no pain, fatigue, weakness, lack of endurance or incoordination. There was no sign of radiculopathy. The X-ray of the cervical spine was normal. The examiner found no pathology of the neck from which to render a diagnosis of a disability. During his February 2013 Board hearing, the Veteran testified that he had a whiplash injury in service that continues to cause him problems. He claimed to get a stiff neck a couple of times a month and that he felt like he wanted to crack it all the time. He further reported that he would treat it himself by cracking his neck, but that he did not receive any medical treatment for the neck. The medical records do not document a diagnosis of a chronic neck disability -during or since service. Indeed, review of the entire claims file reveals only a March 8, 2004 assessment of muscle strain, secondary to hyperflexion, although by his March 15, 2004 examination the Veteran no longer complained of neck pain and no longer received a diagnosis of a neck disorder. Subsequent service treatment records do not reflect any complaints of, or treatment for, neck pain and in February 2006 the Veteran specifically denied having such pain. Furthermore, the August 2006 VA examiner specifically found that following examination, including X-ray evaluation, there was no pathology from which to render a diagnosis of a neck disability. Again, although the VA examiner did not have the claims file, that fact does not in any way change the results that examination, or the other medical evidence of record. Here, competent, probative evidence simply does not support a finding that the Veteran had a chronic neck disability during or since service. Rather, the evidence indicates no more than the Veteran's own, unsubstantiated reports of chronic neck pain-such complaints which, as indicated, he is competent to assert, but which, without more, simply do not constitute a disability for which service connection can be awarded. Pointedly, the Board notes that the Veteran has been inconsistent in his reports of neck pain. He denied having neck pain in his February 2006 report of medical history, but has since claimed to have had chronic neck pain since 2003 to the present. In any event, the medical evidence of record simply does not support a finding of current neck disability, and the Veteran has not presented or identified any medical evidence documenting a current neck or cervical spine diagnosis. Moreover, the Veteran cannot support his claim on the basis of lay assertions, alone. As neither the Veteran nor his representative is shown to have the training or expertise to either diagnosis a current neck or cervical spine disability underlying the Veteran's complaints, or to offer any opinion as to the origin of the Veteran's complaints. See Jones, 7 Vet. App. at 137-38. See also Bostain, 11 Vet. App. at 127; Routen, 10 Vet. App. at 186 ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, lay assertions as to diagnosis and etiology have no probative value. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. §§ 3.303, 3.304. Thus, where, as here, competent, probative evidence does not establish that the Veteran has the disability for which service connection is sought; there can be no valid claim for service connection. Consequently, the claim for service connection for a neck disability must be denied because the first essential criterion for service connection-evidence of a current neck disability-has not been met. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. C. Left Knee Disability The Veteran's service treatment records do not document any complaints of, or treatment for, the left knee. The service treatment records do, however, document treatment for the right knee, including surgery, following a right knee injury from playing basketball. In his February 2006 report of medical history, the Veteran complained of knee problems, but specified that such problems were related to his already service-connected right knee. Following his May 2006 separation from service, the Veteran underwent an August 2006 VA examination. The Veteran reported left knee pain. The examiner found the knees to have a normal range of motion and intact neuromuscular examination. The examiner found no weakness, effusion, edema, locking or ankylosis and only minimal tenderness. The X-ray of the left knee was normal. The examiner found no pathology from which to render a diagnosis for a left knee disability. In March 2009, the Veteran underwent another VA examination. The examiner found the left knee to show no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding, locking pain, gunurecuvatum or crepitus. The examiner found the X-ray revealed no evidence of fracture or other significant bone, joint or soft tissue abnormality. The examiner did not make a diagnosis regarding the left knee. Again, although the examiner did not have the claims file for review, that fact does not During his February 2013 Board hearing, the Veteran testified that he had not had an injury to his left knee, but that his claimed left knee disability was a result of his military service, including "climbing up and down the stairs every day with the right knee being weak". He reported that he did not get treatment for the left knee in service, though he took pain medication then, but that he was no longer able to take such medications due to his job. The medical records do not document a current left knee diagnosis or evidence of left knee disability. Indeed, review of the entire claims file reveals that none of the medical records document any complaints of, or treatment for, the left knee. In his February 2006 report of medical history, the Veteran limited his knee complaints to his already service-connected right knee. Both the August 2006 and March 2009 VA examiners examined the Veteran's left knee, but did not diagnose him with a left knee disability. The August 2006 VA examiner specifically found no pathology from which to render a diagnosis. Here, competent, probative evidence simply does not support a finding that the Veteran has had a chronic left knee disability during, or since, service. Again, the claims file reflects no more than the Veteran's own, unsubstantiated reports of chronic left knee pain-which, as indicated, he is competent to assert. The Board again notes, however, at as regards the left knee, such reports have been inconsistent. The Veteran specified having right knee, not left knee pain, in his February 2006 report of medical history, but has since claimed to have had chronic left knee pain since 2003 to the present. In any event, the Veteran's own complaints, without more, simply does not provide a basis for an award of service connection-particularly in view of the medical evidence of record reflecting a normal knee. Moreover, neither the Veteran nor his representative is shown to have the training or expertise to either diagnose a left knee disability underlying the Veteran's complaints, or to offer any opinion as to the etiology of any current problems. See Jones, 7 Vet. App. at 137-38. See also Bostain, 11 Vet. App. at 127; Routen, 10 Vet. App. at 186 ('a layperson is generally not capable of opining on matters requiring medical knowledge'). Hence, lay assertions as to diagnosis and etiology have no probative value. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also 38 C.F.R. §§ 3.303, 3.304. Thus, where, as here, competent, probative evidence does not establish that the Veteran has the disability for which service connection is sought; there can be no valid claim for service connection-on any basis (to include as secondary to service-connected right knee disability, which the Veteran has alternatively asserted. See 38 C.F.R. § 3.310 ). Consequently, the claim for service connection for a left knee disability must be denied because the first essential criterion for service connection on any basis-evidence of current left knee disability-has not been met. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. Service connection for a neck disability is denied. Service connection for a left knee disability is denied. REMAND The Board's review of the record reveals that further RO action on the remaining claims on appeal is warranted. Regarding the claim for an higher rating for the service-connected pes planus with disfigured toenails, fifth toe, the Veteran has asserted-to include during his February 2013 Board hearing, that he has continued feet pain and that his disability has worsened his last VA examination in August 2006. He has further contended that a separate rating is warranted for his toenails. As regards to the higher rating claim for the service-connected right knee disability, during the February 2013 Board hearing the Veteran asserted that his right knee disability has worsened in severity. He also reported now having fluid on his knee and that he has started to develop arthritis. To ensure that the record includes sufficient medical evidence to properly evaluate each disability remaining under consideration, the Board finds that more contemporaneous examinations, with findings responsive to the applicable rating criteria, are needed. See 38 C.F.R. § 5103A (West 2012); 38 C.F.R. § 3.159 (2012); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). Accordingly, the RO should arrange for the Veteran to undergo a VA feet examination and a VA knee examination, by an appropriate physician, at a VA medical facility. The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the claims (as the original claim(s) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(a), (b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examinations, to ensure that all due process requirements are met, and that the record before the examiner(s) is complete, the RO should give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran provide, or provide appropriate authorization for it to obtain, any outstanding private medical records, including from Dr. R. Rajan, if applicable. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following actions: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable VA to obtain any additional evidence pertinent to the claims for higher rating for a bilateral foot disability and/or for a right knee disability that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records, including from Dr. Dr. R. Rajan. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, arrange for the Veteran to undergo VA podiatry by an appropriate medical professional, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND must be made available to the individual designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests, studies, and consultations should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should render findings responsive to the applicable criteria for rating the service-connected pes planus, specifically identifying the symptoms, and assessing the severity, of pes planus for each foot. The physician should also clearly indicate whether the Veteran's in-service removal of the fifth toenails resulted in disability of the fifth toenails separate from the pes planus, and if so, the manifestations, and severity, of such disability. All examination findings, along with complete rationale for the conclusions reached, should be set forth in a printed (typewritten report). 4. After all records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA right knee examination by an appropriate medical professional, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND must be made available to the individual designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests, studies, and consultations should be accomplished (with all results made available to the physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should conduct range of motion studies of the right knee, noting the exact measurements for flexion and extension, specifically identifying any excursion of motion accompanied by pain. If pain on motion in the right knee is observed, the examiner should comment on the extent of pain, and indicate at which point pain begins. Tests of joint motion against varying resistance should be performed on the right knee. The extent of any incoordination, weakened movement and excess fatigability on use should be described. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. The examiner should specifically indicate the presence or absence of any lateral instability and/or recurrent subluxation. If instability is present, the examiner should, based on the examination results and the documented medical history and assertions, assess whether such instability is slight, moderate or severe. 5. If the Veteran fails to report to any scheduled examination(s)n, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims for higher ratings for bilateral pes planus with disfigured toenails, fifth toe, and a right knee disability in light of all pertinent evidence (to include all that associated with the claims file after the RO's last adjudication of the claims) and legal authority. 8. If the benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs