Citation Nr: 1325671 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-01 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for the residuals of traumatic brain injury (TBI). 2. Whether new and material evidence has been received to reopen service connection for right knee disorder. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1969 to December 1973 with additional service in the Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and November 2009 ratings decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO, in pertinent part, denied service connection for TBI in November 2008 and denied service connection for right knee disorder and TDIU in November 2009. In a September 2010 statement of the case (SOC), the RO analyzed the claim for service connection for right knee disorder in terms of the need for new and material evidence. Before reaching the merits of this claim, the Board must first rule on the matter of the reopening of the claim. Therefore, the Board must determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). The Board has therefore listed the issue, of whether new and material evidence has been received to reopen service connection for right knee disorder, on the title page accordingly. In an October 2010 substantive appeal, via a VA Form 9, the Veteran requested a personal hearing before the Board in Washington, DC. In January 2011, he submitted an additional VA Form 9 indicating his request to withdraw the hearing request. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of entitlement to service connection for right knee disorder and TDIU 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. All relevant evidence necessary to decide the Veteran's appeal for the residuals of TBI and whether new and material evidence has been received for right knee disorder has been obtained. 2. The Veteran does not have current residuals of an in-service TBI. 3. Service connection claim for right knee disorder was denied in an April 1996 rating decision by the RO; and the Veteran was notified of this action and of his appellate rights, filed a timely notice of disagreement, was issued a SOC, but did not file a timely substantive appeal. 4. The evidence received since the April 1996 rating decision, regarding service connection for right knee disorder, is new and material. CONCLUSIONS OF LAW 1. The criteria for service connection for the residuals of TBI have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. The April 1996 rating decision that denied service connection for right knee disorder became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 3. New and material evidence has been received since the April 1996 rating decision to reopen service connection for right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection for the Residuals of TBI Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be established through application of statutory presumptions. Diseases subject to presumptive service connection are shown at 38 C.F.R. § 3.309. In this case, the evidence does not show the Veteran has ever been diagnosed with a disease listed as a "chronic disease" under 38 C.F.R. § 3.309(a) for his claim of service connection for the residuals of TBI, thus 38 C.F.R. § 3.303(b) does not apply in this case. 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). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran reports that he suffered a head injury during service aboard the USS Bonefish. His head was numb for six to eight months and he received stitches for a laceration. Since then, he contends having constant headaches, tingling, numbness, dizziness, sleeping problems, nerve pain, and seizures. Such contentions are noted by the Veteran in a VA Form 9 dated January 2010 and April 2012 and a VA Form 21-4138 dated April 2009, July 2009, and March 2010, and at an October 2008 VA examination for TBI. In a November 2008 rating decision, the RO granted service connection for scar on the right forehead, assigned as noncompensable (0 percent), effective April 23, 2008. A November 1991 private treatment record noted the Veteran's complaints of vertigo, headaches, right shoulder pain, and neck pain since an accident in February 1991. He also noted neck pain with headaches. Physical examination documented history of head injury with no concussion. A February 1992 computed tomography (CT) scan of the Veteran's brain revealed normal results, other than mucosal thickening and a single anterior ethmoidal air cell to the right midline. Additional private treatment records show that in July 2002, the Veteran's chief complaint was poor equilibrium, created when he lies down and gets up quickly or turns his head frequently, which he believed might be related to his May 1999 ladder injury. He also noted occasional neck pain which may be related to headaches. October 1993 and March 1994 records, pursuant to treatment for a work-related injury, documented the Veteran has some headaches, along with neck and upper back pain and shoulder discomfort. The Veteran also reported, pursuant to a May 2005 private chiropractic treatment session, that his present state of health includes headaches that started in 1990 and symptoms of neck pain, sleeping problems, back pain, tension, chest pain, dizziness, neck stiff, fatigue, and ears ringing. Pursuant to VA outpatient treatment sessions, in April 2007, the Veteran reported having chronic regular headaches since 1999 after he fell off a ladder while doing some electric work. Following clinical evaluation, he was assessed with chronic headaches similar to tension headache. August 2007 and October 2007 records noted the Veteran's complaints of chronic headaches and pain from arthralgias and body pains related to scattered degenerative joint disease / osteoarthritis / cervical spondylosis and history of multiple surgeries. His prior assessment of chronic headaches similar to tension headaches was affirmed, and the October 2007 record included the description of cervicogenic headache. A December 2007 record noted the "most likely cause of the headache is cervical spine and tension headache." Chronic headaches similar to tension headaches were also listed among the Veteran's active problems, as well as the Veteran's noted complaints and treatment for such from March 2008 to July 2010. At the October 2008 VA examination for TBI, the Veteran reported since 1990 he has experienced chronic headaches, which resemble tension-type headaches starting in the back of the neck causing neck pain, radiating to the back of the head, then to the shoulders. He also complained of restlessness during sleep, chronic fatigue, malaise, intermittent numbness to the hands, moderate memory impairment, decreased attention, difficulty concentrating and understanding directions during headache, headache pain from morning until nighttime, and behavioral changes of irritability and restlessness. Nevertheless, the report noted no history of dizziness, vertigo, weakness, paralysis, effect on mobility or balance, slowness of thought or confusion, difficulty with written language or comprehending written words, delayed reaction time, speech impairment, swallowing, visual problems, seizure activity, hearing problems, or hypersensitivity to sounds or light. Findings from the clinical evaluation revealed the cranial nerves II through XII are intact, continuous radiation of pain from the neck and spine to either shoulder and neck pain with posterior head pain. There were no objective findings of cognitive impairment, psychiatric manifestations, effects on vision and hearing, or endocrine dysfunction. The Veteran was diagnosed, in pertinent part, with tension headaches secondary to cervical spondylosis and negative examination for TBI. It was opined that "the Veteran's headache complaints are not caused by or secondary to an injury to the right forehead which resulted in a sutured laceration, but the [V]eteran's chronic headaches are related to his cervical spondylosis." The VA examiner provided the following rationale based on review of the claims file. March 1992 private medical letter related the Veteran's shoulder injury with the later development of neck and back pain with tension headaches secondary to the neck and shoulder problems. The Veteran did not have chronic headaches until after this work-related injury, and after that time, it became a chronic problem. The service treatment records do not reflect any mention of chronic or recurrent headaches. Although the December 1973 separation examination report noted the Veteran's scar on the right forehead, the Veteran reported an in-service injury, and a buddy statement supports the injury, the Veteran did not have complaints relating to headaches until 1990 which is associated with a work-related injury unrelated to military service. Therefore, the VA examiner concluded that "the [V]eteran's headaches are not a result of any TBI . . . [and agree] with the previous physicians that have treated [the Veteran] that the headaches are tension, related to [the] neck condition." On VA general medical examination in September 2009, the Veteran reported, in pertinent part, having chronic headaches since 1999 and generalized chronic fatigue, and denied any trouble with mobility, balance, hearing, or vision. Neurological examination results showed cranial nerves are intact and the Veteran is alert and oriented. Simply stated, the Board fully understands the Veteran's concerns and complaints regarding his symptoms from an in-service head injury. However, based on the evidence of record, the competent and credible evidence demonstrates the Veteran does not have residuals of an in-service TBI at this time. During the course of this appeal, as discussed above, the Veteran reported the onset of symptoms at different times. In an October 1995 VA Form 21-4138, the Veteran also reported his headaches are from a non-military injury that happened in February 1991 in Colorado. These inconsistencies, compared to his assertions of continuous headache symptoms since service and subsequent statements asserting the headaches are due to the in-service head injury, weigh against the Veteran's credibility as to the assertion of residuals of an in-service TBI. See Madden, 125 F.3d at 1481; Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The most probative evidence of record, as stated above is the October 2008 VA medical opinion which relates the Veteran's current headache symptoms to the nonservice-connected neck disorder. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record is against the claim for service connection for residuals of TBI. The best factual evidence in this case, including, it is important for the Veteran to understand, some of the Veteran's own past statements (which provide significant evidence against his current claim), provide, overall, evidence against this claim. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for the residuals of TBI, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. New and Material Evidence to Reopen Service Connection In an April 1996 rating decision, the RO denied service connection, in pertinent part, for right knee disorder. The RO stated the claim is not well grounded and the evidence does not show a right knee disorder subject to service connection. The Veteran was notified of the April 1996 rating decision and of his appellate rights, filed a timely April 1996 notice of disagreement, the RO issued a July 1996 SOC, but the Veteran did not file a timely substantive appeal. As a result, the Board finds that the rating decision became final for this claim on appeal. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. A claim that has been previously denied may be reopened if new and material evidence is received with respect to that claim. If the claim is reopened, it will be reviewed on a de novo (new) basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence submitted since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening the claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). New and material evidence can be neither cumulative (new material of the same kind) nor redundant (duplicate) of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened). The evidence of record associated with the claims file since the April 1996 rating decision, pertaining to the claim on appeal, does not include relevant official service department records, and there was no evidence received prior to the expiration of the appeal period pertaining to this claim. Therefore, 38 C.F.R. § 3.156(b) and 38 C.F.R. § 3.156(c) are not applicable. All of the evidence received since the April 1996 rating decision was not previously submitted to VA. Specifically, the RO scheduled the Veteran for a VA examination for the joints in October 2009. The examiner affirmed the diagnosis of a current right knee disorder and reported "due to the lack of any service treatment records regarding [the Veteran's] knees, it would require speculation on the part of this examiner to render the requested opinion." Such evidence is pertinent to the issue of whether the currently diagnosed right knee disorder is potentially related to service. As a result, the Board finds that the newly received evidence, specifically the October 2009 VA examination report for the joints, is new and material. Having submitted new and material evidence, the service connection claim for right knee disorder is reopened; and to that extent only, the appeal is granted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA 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. The Board finds that the VCAA notice requirements have been satisfied by May 2008, September 2009, and March 2010 letters. In these letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. VCAA notice must also include the basis for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate the element(s) required to establish service connection that was found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans, 9 Vet. App. at 282 (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). In the March 2010 letter, the Veteran was apprised of the basis for the denial in the prior decision and the information necessary to reopen the claim for right knee disorder on appeal. The VCAA 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the September 2009 and March 2010 letters included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claims on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, VA examination reports dated October 2008, September 2009, and October 2009, and statements from the Veteran. The October 2008 and September 2009 VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination reports are probative for the residuals of TBI claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims on appeal. The evidence of record provides sufficient information to adequately evaluate the claims, all obtainable evidence identified by the Veteran relative to the claims has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for the residuals of TBI is denied. New and material evidence has been received to reopen service connection for right knee disorder; and to that extent only, the appeal is granted. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issues of service connection for right knee disorder and TDIU. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The October 2009 VA medical opinion is inadequate to render a decision for the service connection claim for right knee disorder because the examiner's rationale was solely based on the absence of treatment records for the right knee during service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service); see also 38 C.F.R. § 4.2 (2012) (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Moreover, once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Daves v. Nicholson, 21 Vet. App. 46, 52 (2007); Hicks v. Brown, 8 Vet. App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). As a result, the Board finds that an additional VA medical opinion is necessary to ensure there is a complete record upon which to decide this claim on appeal. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced); see also Stefl v. Nicholson, 21 Vet. App 120 (2007). The RO/AMC should arrange for the Veteran's claims file to be reviewed by the physician who conducted the October 2009 VA examination for the joints and prepared the medical opinion (or a suitable substitute if that physician is unavailable) for the purpose of preparing an addendum opinion. In addition, since the Veteran's claim for service connection for right knee disorder is being remanded and because adjudication of this claim may impact adjudication of the Veteran's TDIU claim, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the TDIU claim must also be remanded. Accordingly, the issues of service connection for right knee disorder and TDIU are REMANDED for the following actions: 1. Furnish the Veteran's entire claims file to the physician who conducted the October 2009 VA examination for the joints and prepared the medical opinion (or a suitable substitute if that physician is unavailable). The physician must review all pertinent evidence of record and prepare an addendum opinion to as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current right knee disorder began during service or is otherwise linked to service. Another examination of the Veteran is not required. A rationale should be given for all opinions and conclusions expressed, and should not be based solely on the absence of treatment records for the right knee during or after service. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond. If an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 2. Thereafter, the issues of service connection for right knee disorder and TDIU should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination (if one is needed in this case), as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). These claims 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs