Citation Nr: 1326418	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  10-05 211	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for a right ear hearing loss disability.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a right knee disorder.

4.  Entitlement to service connection for a left knee disorder.

5.  Entitlement to service connection for pes planus.

6.  Entitlement to service connection for eczema of the hands and body.


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to April 1988.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to service connection for a right knee disorder, a left knee disorder, pes planus, and eczema 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 preponderance of the evidence is against finding that the Veteran has a current right ear hearing loss disability that is etiologically related to a disease, injury or event in service.

2.  The preponderance of the evidence is against finding that the Veteran has tinnitus that is etiologically related to a disease, injury or event in service.


CONCLUSIONS OF LAW

1.  A right ear hearing loss disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2012).

2.  Tinnitus was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

I.  Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 

A VCAA letter dated in April 2008 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187.  The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  Furthermore, this letter described how appropriate disability ratings and effective dates were assigned.

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's available service treatment records and relevant VA and private medical records are in the file.  The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible.  The record contains sufficient evidence to make a decision on the claim.  VA has fulfilled its duty to assist.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2012).  The Veteran was provided a VA examination in December 2008 which addressed his claim for service connection for a right ear hearing loss disability and tinnitus.  The examiner conducted the appropriate diagnostic tests, and considered the Veteran's reported history.  The Board finds this examination report and opinion to be thorough and complete.  Therefore, the Board finds this examination report and opinion sufficient upon which to base a decision with regard to this service connection claim.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The Board also observes that in Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities.  See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2011).  Here, the VA examiner included a discussion of the effects of the Veteran's hearing loss, and the record otherwise includes the Veteran's statements concerning its effects.  In light of the foregoing, the Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

	A.  General Law and Regulations

In general, service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303.  Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2012).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004).

For certain chronic disorders, including sensorineural hearing loss disability, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

A disorder may be service connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service.  38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria.  Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz).  See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). 

The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385 (2012).  For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385 (2012).

When audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a "disability" at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.  See Hensley, supra.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

	B.  Factual Background and Analysis

The Veteran's service treatment records reflect that his military occupational specialty was 47252 (general purpose vehicle mechanic).

On January 1980 service entrance physical examination, a clinical evaluation of the Veteran's ears was normal.  Pure tone thresholds, in decibels, were as follows:
      

HERTZ

500
1000
2000
3000
4000
RIGHT
20
10
10
25
25

The Veteran indicated on a January 1980 service entrance Report of Medical History (RMH) that he did not experience hearing loss.

A service audiogram completed in January 1985 yielded the following pure tone thresholds, in decibels:
      

HERTZ

500
1000
2000
3000
4000
RIGHT
20
15
15
30
30

Another service audiogram completed in November 1985 yielded the following pure tone thresholds, in decibels:
      

HERTZ

500
1000
2000
3000
4000
RIGHT
15
15
15
30
25

The examiner indicated that the Veteran had a stable high frequency hearing loss, both ears.

The Veteran has submitted a September 2007 audiogram that has not been interpreted.  The audiogram reflects that the Veteran has tinnitus.  The word recognition score was 80 percent for the right ear.

A VA audiology consult from September 2007 reflects that the Veteran had a history of military and industrial noise exposure.  The Veteran reported a bilateral high pitch tinnitus.  The examiner indicated that the Veteran had a bilateral sensorineural hearing loss, moderate to severe high frequency.  The speech discrimination score was 84 percent for the right ear.

On VA compensation and pension examination in December 2008, the examiner noted that the Veteran's service entrance examination reflected hearing within normal limits bilaterally.  The examiner further noted that the service 1985 audiogram indicated hearing within normal limits under VA standards in the right ear, although there was a hearing threshold shift.  No complaints of tinnitus were found in the service treatment records.  The Veteran reported difficulty hearing soft conversations.  He also reported noticeable tinnitus.  The examiner recorded the Veteran's history of military noise exposure as an automobile mechanic.  It was also noted that the Veteran had been exposed to occupational noise as a civilian for the previous 20 years as an automobile mechanic.  The record further reflects that the Veteran had a history of working on and attending race car events without usually wearing hearing protection.  Pure tone thresholds, in decibels, were as follows:
      

HERTZ

500
1000
2000
3000
4000
RIGHT
20
25
30
55
55

The right ear speech recognition score was 92 percent.  The examiner gave a diagnosis of normal sloping to moderately severe sensorineural hearing loss bilaterally with bilateral tinnitus.  While noting the Veteran's conceded history of military noise exposure, the examiner opined that the Veteran's right ear hearing loss was less likely as not caused by or a result of in-service acoustic trauma, as the service treatment records showed hearing within normal limits for VA purposes in the right ear during military service.  The examiner further opined that the Veteran's tinnitus was less likely as not caused by or a result of in-service acoustic trauma, as the service treatment records were negative for tinnitus.  The examiner explained that she also considered the conceded in-service noise exposure as well as the history of civilian occupational and recreational noise exposure.

In his February 2009 notice of disagreement, the Veteran said that his right ear hearing loss and tinnitus were caused by military acoustic trauma.  He explained that he had not been exposed to any noise since active duty that would have caused either problem.

Following careful review of the evidence of record, the Board finds the preponderance of the evidence is against the Veteran's claim of service connection for a right ear hearing loss disability and tinnitus.  

In this regard, the Board notes that there is a remarkable lack of credible evidence of pathology during service and for many years following separation for either disability.  With the exception of the Veteran's slight increase in pure tone thresholds between the 1980 and 1985 audiological examinations, the service treatment records are negative for hearing loss complaints or tinnitus.  Moreover, the right ear hearing loss thresholds did not reach a level to warrant a finding of a hearing loss disability for VA purposes under 38 C.F.R. § 3.385.

Although the Veteran later reported decreased right ear hearing acuity and tinnitus, it appears that the earliest post-service diagnosis of bilateral hearing loss was during the September 2007 VA audiology consult.  The Veteran has not indicated any other treatment for hearing problems.  

The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service.  Although the evidence record shows a current right ear hearing loss and tinnitus, it does not contain reliable evidence which relates either claimed disability to any injury or disease in service.  

The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Veteran has stated that he experienced symptoms of right ear hearing loss and tinnitus during service, and that he continued to have such symptoms following discharge from active service.  Additionally, he has stated that he was not exposed to any noise following service that could have caused his right ear hearing loss or tinnitus.  However, such assertions are directly contradicted by the statements the Veteran made to the December 2008 VA examiner.  Although the Veteran stated in his February 2009 notice of disagreement that he had not been exposed to any noise following active duty that could have caused his right ear hearing loss and tinnitus, he told the December 2008 VA examiner that he worked as a civilian for 20 years as an automobile mechanic.  Additionally, he told the December 2008 VA examiner that he had a history of working on and attending race car events, and he usually had not worn hearing protection.  The Board finds the statements the Veteran made to the December 2008 VA examiner to be more probative than the statements he made to the RO, as the statements he made to the VA examiner were made to a medical specialist in the context of an audiological examination.  The Veteran's statements to the RO were made independently in connection with a claim for financial compensation.  In summary, the Board finds that the negative record at service discharge and in the years following service along with the December 2008 VA examination report to be more probative than the Veteran's statements to the RO.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

The Board additionally notes that the VA audiologist who conducted the December 2008 examination concluded that the right ear hearing loss and tinnitus were less likely as not the result of noise exposure during active duty.  The examiner discussed the pertinent evidence, noting that the enlistment and in-service examinations showed normal right ear hearing (for VA purposes).  In essence, despite examining the Veteran, obtaining a history from him, and reviewing pertinent service and post-service records, the examiner was unable to link the Veteran's right ear hearing loss disability and his tinnitus to his military service.  The audiologist provided a reasoned opinion, based on complete review of the record, interview, and examination.  In assigning high probative value to this examiner's conclusions, the Board notes that she had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination.  There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that either misstated any relevant fact.  The Board thus finds the VA examiners' conclusion that the Veteran's right ear hearing loss and tinnitus are less likely than not related to his service to be of greater probative value than the unsupported lay statements from the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

Absent competent and reliable lay or medical evidence relating these claimed disabilities to service, and in consideration of the VA opinion discussed above, the Board concludes that the claims of entitlement to service connection for a right ear hearing loss disability and tinnitus must be denied.  The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal.  Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for a right ear hearing loss disability is denied.

Entitlement to service connection for tinnitus is denied.



REMAND

Right and Left Knee Disorders

Service treatment records document in-service treatment for both knees.  An April 1983 record shows that the Veteran had hit his left knee upon getting out of a vehicle and had probable chondromalacia.  In June 1983, the Veteran was put on a profile due to a contusion of the left knee.  A December 1983 record contains a report of chronic bilateral knee pain for the previous 10 years.  A December 1983 X-ray of both knees revealed no significant abnormalities.  The Veteran was put on a physical profile in December 1983 for chronic chondromalacia patella.  A June 1987 treatment record indicates that the Veteran had a contusion of the left knee.

VA treatment records from June 2007, September 2007, and November 2007 contain the Veteran's complaints of knee pain.  In January 2008, he underwent arthroscopic surgery of the right knee.

In December 2008, the Veteran was given a VA compensation and pension examination.  After examining the Veteran, diagnoses of osteochondritis dissecans, status post arthroscopic repair of the right knee, and left knee degenerative joint disease.  The examiner opined that both disorders were less likely as not caused by or a result of active military service; they were consistent with natural aging.

Despite the negative etiology opinion given above, the Board notes that earlier in the December 2008 VA examination report, the examiner opined that the Veteran's bilateral knee disorders had their onset during active military service, as the service treatment records showed in-service treatment for right and left knee pain.

Once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In light of the contradictory etiology opinions given by the December 2008 VA examiner, the Board finds that the Veteran should be afforded a new VA examination to reconcile the contradictory etiology opinions offered by the December 2008 VA examiner regarding the currently demonstrated bilateral knee disorders.

Pes Planus

The Veteran's January 1980 service entrance examination report reflects that the Veteran had normal feet.  The Veteran indicated on a January 1980 Report of Medical History that he did not experience foot trouble.

A December 1985 service treatment record indicates that the Veteran had mild pes planus.  A December 1986 record reflects that the Veteran jumped off a truck and had pain in his left foot and left heel.  The note contains a diagnosis of plantar fasciitis.

The Veteran was given a VA compensation and pension examination in December 2008.  The examiner indicated that the Veteran had complained of flat feet all of his life.  There were no subjective symptoms reported.  The examiner gave a diagnosis of congenital pes planus and opined that the pes planus was not caused by or related to active military service.

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002). 

In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004). 

The Board additionally recognizes that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection.  38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  Service connection for a congenital defect, however, may be awarded if it is shown that such congenital defect was aggravated through superimposed injury during active service.  See VAOPGCPREC 82-90 (July 18, 1990).  Congenital or developmental 'defects' automatically rebut the presumption of soundness and are therefore considered to have preexisted service.  38 C.F.R. §§ 3.303(c), 4.9.

Here, the service entrance examination indicates that the Veteran had normal feet; however, the December 2008 VA examiner gave a current diagnosis of congenital pes planus.  No mention was made by the December 2008 VA examiner of the Veteran's service records which reflect pes planus or plantar fasciitis after jumping off a truck.  Although the December 2008 examiner gave a negative etiology opinion regarding direct service connection, no opinion was offered regarding the possibility of aggravation of the Veteran's pes planus through a superimposed injury.  In light of the Veteran's documented December 1986 in-service foot injury incurred by jumping off a truck, the Board finds that a new VA examination report-one which discusses the possibility of aggravation of pes planus through a superimposed injury-would be helpful in adjudicating the claim for service connection for pes planus.

Eczema

Service treatment records reflect that in September 1980, the Veteran was treated for tinea versicola to his chest and shoulders.  He received treatment for jock itch in November 1980.  In January 1984, he was treated for an eruption on his head, lip, shoulder, and hip.  A January 1985 record documents eczema on the Veteran's hand.  A tinea fungus on the Veteran's feet and hand was treated in December 1987.

Post-service, the Veteran received treatment for actinic keratosis and seborrheic keratosis at a VA facility in July 2008.

The Veteran was afforded a VA compensation and pension examination in December 2008.  The examiner noted that the Veteran was treated for eczema on his right hand on one occasion while on active duty.  The examiner observed that the Veteran currently had eczema of his right hand and opined that the right hand eczema was less likely as not caused by or a result of active military service.  No further rationale was given for the expressed opinion.

Again, once the VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, the VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr, supra.

As the December 2008 VA examiner gave no rationale for the given opinion, it is of limited probative value.  Consequently, as the Veteran has a current diagnosis of eczema and documented in-service treatment for various skin disorders, the Veteran should be afforded a new VA examination for an etiology opinion that is supported by an accompanying rationale.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any additional VA and non-VA treatment records identified by the Veteran.  All attempts to secure this evidence must be documented in the claims folder.  If, after making reasonable efforts to obtain named records the records are unable to be secured, notify the Veteran and (a) identify the specific records that were unable to be  obtained; (b) briefly explain the efforts that were made to obtain those records; and (c) describe any further action to be taken with respect to the claim.  The Veteran must then be given an opportunity to respond.

2.  Then, the RO or AMC should schedule the Veteran for a general examination with a VA examiner of appropriate expertise.  

Following a review of this REMAND directive, a complete review of the Veteran's claims file and Virtual VA, and examination of the Veteran, the examiner should provide an opinion whether the Veteran currently suffers from a (1) right knee disability, (2) left knee disability, (3) pes planus, (4) eczema.  The examiner's report must explicitly state that such review occurred.  

The examiner must:

a) Provide an opinion whether any present foot disability clearly and unmistakably existed prior to the Veteran's active duty from January 1980 to April 1988;

b) If the Veteran's foot disability did clearly and unmistakably exist prior to his period of active duty, provide an opinion as to whether the disability clearly and unmistakably was NOT aggravated beyond the natural progression of the disability during his service.

c)  Additionally, for each diagnosed foot disability, the examiner should indicate whether the disability is a congenital disease or defect.  [Note: a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990) (citing Durham v. United States, 214 F.2d 862, 875   (D.C. Circuit 1954)].

 If it is a congenital or development defect, please explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability of the feet. The examiner is specifically requested to consider the December 1986 service treatment record which reflects a diagnosis of plantar fasciitis after the Veteran jumped off a truck.

d) For each foot disability that did not clearly and unmistakably exist prior to his service, provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any foot disability originated during, or is etiologically related to, his period of active duty.

e) Additionally, if the Veteran is diagnosed with a right knee disability, left knee disability, and/or skin disability, then the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any of these disabilities originated during, or is etiologically related to, his period of active duty.

The examiner must provide a detailed explanation for any opinion proffered.  If the examiner is unable to provide any opinion requested, the examiner must fully explain why such opinion could not be obtained.

3.  When the development requested 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 appellant has the right to submit additional evidence and argument on the matter or 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs