Citation Nr: 1327469	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  05-06 481A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a left wrist disability, claimed as carpal tunnel syndrome. 

2.  Entitlement to service connection for a left ankle disability, to include as secondary to service-connected bilateral foot disability, right ankle disability, right knee disability, and/or lumbar spine disability. 

3.  Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral foot disability, right ankle disability, right knee disability and/or lumbar spine disability. 

4.  Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right patella.


WITNESS AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

J. Murray, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from August 1995 to August 1999 and from February 2000 to February 2004. 

These matters come before the Board of Veterans' Appeals (the Board) on appeal from multiple rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). 

In July 2010, the Veteran presented testimony before the undersigned at a Board hearing at the Central Office, in Washington, District of Columbia.  The Veteran was provided an opportunity to set forth his contentions at the hearing.  The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims.  These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board).  A copy of the hearing transcript has been associated with the claims folder.

In January 2011 and January 2013, the Board remanded the matters currently on appeal for further development. 

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal that the Board is adjudicating in this decision.

The issues of service connection for a left ankle disorder and a left knee disorder, and increased evaluation for right knee disorder 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.


FINDING OF FACT

The evidence of record does not show that the Veteran's current left wrist disorder had an onset during his period of service, and the preponderance of the evidence is against a finding that his current left wrist disorder is otherwise related to his periods of service. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for a left wrist disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Stegall Considerations

As noted above, the Board remanded this matter in January 2011 and in January 2013.   In January 2011, the Board specifically instructed the RO/AMC to obtain outstanding treatment records, to schedule the Veteran for a VA examination to determine the nature and etiology of any current left wrist disorder, and to readjudicate the claim.  Subsequently, outstanding treatment records were obtained and associated with the Veteran's claims folder and electronic record.  Although the Veteran was afforded examination for his left wrist disorder in March 2011 and the examiner provided a medical conclusion, the VA examiner failed to take into account the Veteran's statements as to service incurrence, when he injured his left wrist when a light machine gun fell from his shoulder and struck him in the wrist.  

The matter was again remained in January 2013 in order to provide the Veteran with another examination so that the examiner could address the Veteran's competent assertion as to having injured his wrist during service.  The Veteran underwent a VA examiantion in March 2013.  In that examination report, the VA examiner provided a medical conclusion based on a review of the claims folder, the Veteran's reported history, and the findings from clinical examination.  Thereafter, his claim was readjudicated in a May 2013 supplemental statement of the case.  Thus, there is compliance with the Board's remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

VA's Duty to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  

Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). 

Importantly, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. 
§ 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (2007). 

VA sent letters to the Veteran in March 2005 and October 2009 that addressed the notice elements concerning his claims.  The letters informed the Veteran of what evidence is required to substantiate the claims, and apprised the Veteran as to his and VA's respective duties for obtaining evidence.  In the October 2009 letter, VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The claim was subsequently readjudicated in subsequent supplemental statements of the case, most recently in May 2013.  See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case).

The Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

In addition to its duty to notify, or inform, the Veteran with regard to his claims, VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In this case, the available record includes service treatment records, service personnel records, post-service VA medical treatment reports, and the Veteran's own statements.  There is no evidence of any outstanding records pertaining to the Veteran's left wrist.  While additional records from the U.S. Department of Labor were received since the issuance of the most recent supplemental statement of the case, these records do not contain information pertaining to the left wrist claim.  The Board finds that the notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matters have been requested or obtained.  There is no evidence that any additional relevant treatment records exist, and the Veteran has not so alleged.

Moreover, the Veteran has been afforded VA examinations of his left wrist in March 2005, March 2011, and March 2013.  While the 2011 VA examination report contains some deficiencies that detracts from the adequacy of the report, the report of the March 2013 VA examination demonstrates that the VA examiner reviewed the evidence of record and rendered an appropriate opinion based on the question presented by the Board.  This opinion was rendered after a thorough review of the claims file and is supported by the evidence of record.  The Board finds that this report is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 [affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim].  Accordingly, the Board concludes that VA has complied with its duty to assist the Veteran.  

The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA.  See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service Connection 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  See 38 C.F.R. § 3.303(b).  The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).  

Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).  

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.  

In this case, the Veteran seeks entitlement to service connection for a left wrist disorder.  He reports that during service he injured his left wrist when a light machine gun fell from his shoulder and struck him in the wrist. 

Reviews of the Veteran's service treatment records from both of his periods of service do not show any complaints, treatment or diagnosis of any left wrist problems.  The Veteran's June 1999 examination prior to separation from his first period of service shows he received normal upper extremity and neurologic evaluations.  In addition, on the associated report of medical history, the Veteran specifically denied that he had had symptoms of neuritis or paralysis during his first period of service.  

The reports from his enlistment into his second period of service in August 1999 also do not show any complaints or diagnosis of any left wrist problems.  The report of an October 2003 medical history prior to separation does not show any complaints of left wrist problems, and the Veteran again denied that he had had symptoms of neuritis during his second period of service.  There is no associated service separation examination report of record, but the Veteran was afforded a VA general medical examination in March 2004, shortly after the Veteran's separation from his second period of service.  That examination report does not show that the Veteran complained of any left wrist problems to the VA examiner. 

A February 2005 VA treatment record shows that the Veteran presented with complaints of "arthritic pain" in his left wrist with decreased range of motion for the past six months.  He further complained of tingling and numbness in his hand.  Clinical examination revealed decreased range of motion secondary to pain and decreased function of the last three digits, but neurologic examination was normal.  There was evidence of tenderness on palpation, but no findings of swelling or warmth.  It was felt that the Veteran likely had bursitis in his left wrist.  He was prescribed pain medication and advised to use compresses and a splint to decrease repetitive motion.  

Later in February 2005, the Veteran initiated his claim for entitlement to service connection a left wrist disorder.  

In March 2005, he Veteran was afforded a VA joint examination.  In that examination report, the examiner noted that the Veteran reported a history of an inservice injury to his left wrist in 1997, when he was struck on the wrist and resulted in a bruise.  Physical examination revealed findings of painful motion in the left wrist, but with normal range of motion and no additional loss of motion due to repetitive use.  X-ray film of the left wrist was normal.  The Veteran was assessed with a normal left wrist.  

An April 2005 VA treatment record shows that the Veteran presented with complaints of left wrist problems for the past five months, which he described as manifested by localized pain at the wrist with occasional swelling and stiffness.  He denied any injury to his left wrist.  Physical examination revealed positive Tinel's and Phelan signs at the left wrist and subtle sensatory change in the median nerve distribution.  He was issued and fitted for carpel tunnel splint for his left wrist.  He was advised to undergo a nerve conduction study for carpal tunnel syndrome.  

In March 2011, the Veteran was afforded a VA joint examination.  In the examination report, the examiner noted that the Veteran reported that he first experienced left wrist pain during his active active service and he has been treated for carpal tunnel syndrome.  The Veteran complained of pain, stiffness, weakness, and decreased endurance in his left wrist as well as intermittent pain and numbness in the palmar area of the left thumb.  Flare-ups in pain were associated with lifting.  Physical examination revealed findings of tenderness on palpation, decreased range of motion, and positive Tinel's sign in the left wrist.  The Veteran was diagnosed with chronic left wrist strain. The examiner then provided a negative medical nexus opinion based on the lack of left wrist complaints in the Veteran's service treatment records, but the examiner failed to consider the Veteran's reported history of inservice injury to his left wrist.  

Pursuant to the Board's January 2013 remand directives, the Veteran was provided with another VA joint examination in March 2013.  In that examination report, the examiner noted a review of the claims folders as well as recorded the findings from clinical examination and interview with the Veteran.  The examiner opined that it was less likely than not that the Veteran's left carpal tunnel syndrome was incurred in service or caused by the claimed in-service injury.  The examiner noted that the diagnosis of carpal tunnel syndrome of the left wrist was not consistent with the Veteran's reported inservice injury, a weapon falling against his wrist.  The examiner further stated that the x-ray film of the left wrist was normal.  The examiner noted that a weapon falling against his wrist is not usual mechanism of injury for carpal tunnel syndrome.  

The Board acknowledges that the March 2013VA examiner was unable to provide a current diagnosis for left wrist disorder based on the findings from clinical examination.  The examiner noted that an accurate exam was impossible given the Veteran's reports of severe pain with light touch and an accurate exam requires moving the joint against resistance.   In this regard, the VA examiner noted the previous diagnosis of carpal tunnel syndrome and provided a medical opinion based on that previous diagnosis.  The Board finds that this report is adequate and the examiner's explanation satisfies the holding of the Court in Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010)(the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability).

Here, the Veteran claims entitlement to service connection for a left wrist disorder. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson, 12 Vet. App. at 253.

With respect to element (1), current disability, the evidence of record shows a diagnoses of left carpal tunnel syndrome and chronic left wrist strain based on the findings of  tenderness on palpation, decreased range of motion, and positive Tinel's sign in the left wrist.  See VA treatment records as well as VA joint examinations in 2011 and 2013.  

With respect to Hickson element (2), the Board will separately address in-service disease and injury.  Concerning in-service disease, the service treatment records are silent with regard to complaints, treatment, or diagnosis of a chronic left wrist disorder.  The Veteran did not complain of any wrist problems at his separation from his first or second periods of service, or at the time of the March 2004 VA general medical examination.  Although the Veteran complained of left wrist problems in February 2005, the March 2005 x-ray films revealed no abnormities at that time.  Subsequent x-ray films continue to show no abnormalities involving the left wrist.  There is no evidence of record that shows that the Veteran's current left wrist disorder had an onset during his period of service, and there is no diagnostic evidence of a chronic left wrist disorder within the first year after the Veteran's separation from service.  See 38 C.F.R. §§ 3.303, 3.307, 3.309. 

That being said, the Board cannot ignore the Veteran's reported history of an inservice left wrist injury when a light machine gun fell from his shoulder and struck him in the wrist and he sustained a bruised wrist.  He is competent to make that report.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Moreover, the Board has no reason to doubt his credibility with respect to his reported inservice injury.  Therefore, the second Hickson element has been met with respect to in-service injury.

With respect to element (3), nexus or relationship, the record lacks any medical evidence that links the Veteran's current left wrist disorder and his periods of service.  Indeed, the March 2013VA examiner provided medical opinion heavily weighs against the Veteran's claim that his currently diagnosed left wrist disorder is related to service.  The VA examiner opined that it was less likely than not that the Veteran's left carpal tunnel syndrome is related to his reported inservice left wrist injury as that was not a usual mechanism of injury for development of carpal tunnel syndrome.  In addition, the examiner noted that the Veteran's x-ray film was normal and there was no evidence of degenerative changes or other bone abnormalities that could be associated with the reported inservice injury.  

The Board finds it highly pertinent that there is no contrary medical opinion of record.  Indeed, the Veteran has not provided any objective evidence demonstrating a relationship between his current left wrist disorder and his military service.  The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA.  He has not done so.  See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits].

The Board has considered the Veteran's assertions relating his left wrist disorder to his inservice injury.  However, the Veteran is not a medical professional, and therefore, his beliefs and statements about medical matters do not constitute competent evidence regarding matters that go beyond lay observation, such as to assess the etiology of a neurologic disorder.  See Jandreau 492 F.3d at 1377 (Fed. Cir. 2007) (under certain circumstances, lay person is competent to identify a simple medical condition).  The question of etiology of his current left wrist disorder extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case.  The Veteran lacks the medical expertise to diagnose the condition and to relate its etiological origin to in-service.  See Bostain v. West, 11 Vet. App. 124, 127 (1998).  

Therefore, to the extent, his statements attempt to show an etiological connection between his current diagnosed disorder and his inservice injury; this is simply not competent or persuasive evidence.  Simply put, there is no medical evidence on file linking his current left wrist disorder to his periods of service.  The Veteran is not a medical professional competent to provide such a link by mere statements alone.  

The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, the Veteran has not been diagnosed with one of those recognized chronic condition.  Notably, Veteran has been assessed with carpal tunnel syndrome which affects the peripheral nervous system and not his central nervous system.  In addition, there is no evidence of degenerative arthritis on any of the x-rays taken during the period under appeal.  

While the Veteran has asserted continuity of symptoms with respect to left wrist pain since the 1997, the Board does not find his reports of continuity are not credible.  See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  In this regard, the Board points out that the Veteran did not report any wrist complaints or problems at the time of his separation from either of his periods of service in 1999 or 2004.  Rather, the evidence of record does not show complaints of left wrist problems until February 2005, when the Veteran reported only reported a six month history of left wrist problems (at most, the onset was still six months after his separation from his second period of service).  The Veteran denied any neurologic disorders at the time of his separation from service.  The Board finds that the Veteran's reported history of a continuity of symptoms is not credible.  Therefore, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements.

Accordingly, the Board finds that the evidence does not show that the Veteran's current left wrist disorder had an onset in service, and the preponderance of the evidence is against a finding that it is otherwise related to his periods of service, to include inservice injury.  The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance is against the Veteran's claim, and it must be denied.


ORDER

Entitlement to service connection for a left wrist disorder is denied.  


REMAND

Unfortunately, a remand is required for the remaining issues on appeal in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. 

Left Ankle and Left Knee Disorders 

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4).  See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). 

In the January 2013 remand directives, the Board specifically instructed that the VA examiner determine whether a left ankle disability and left knee disability were incurred in or caused by his period of service, or was proximately caused aggravated by the Veteran's service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; and/or chondromalacia of the right patella.  The Veteran was afforded a VA joints examination in March 2013.  The examination report shows diagnoses of degenerative joint disease in the left ankle with limitation of motion and a left knee strain.  The examiner only marked the box that corresponded to the finding that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event or illness."   In the rationale portion, the VA examiner noted that there was no inservice evidence of left knee disability or injury.  However, the VA examiner did not provide a rationale in support of the medical conclusion that the Veteran's left ankle was not related to his period of service despite evidence of inservice treatment for inversion injury of the left ankle in 2001.  

The VA examination report is also inadequate with regard to the questions of secondary service connection.  In the rationale portion, the VA examiner did discuss how the Veteran's left knee and left ankle were not caused by his service-connected pes planus or bunionectomy disabilities, and how the Veteran's service-connected lumbar spine and right knee disabilities contributed to his left knee problem.  The examiner failed to provide an opinion on whether the Veteran's left ankle disorder was proximately due to his service-connected lumbar spine and right knee disabilities as specified in the Board's remand directives.  Also, the VA examiner failed to reconcile the contrary medical evidence of record that suggests the Veteran's right knee disability has led to his current left knee and left ankle disorders due to overcompensation for his right knee disability.  See April 2010 private neurologic consultation report by Dr. H. A. D., as well as April 2012 private medical evaluation by Dr. D. R. B.  

On remand, a VA supplemental medical opinion should be obtain that addresses (1) whether the Veteran's left ankle disorder is related to his period of service or proximately caused by his service-connected disabilities; and (2) whether the Veteran's left knee disability was proximately caused or aggravated by his various service-connected disabilities, to include overcompensating for his right knee disability.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51(2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision").

Beforehand, however, the Veteran should be furnished with VCAA secondary service connection notice, and any additional treatment records should be obtained.

Right Knee Disability 

Since the matter has returned to the Board, additional evidence has been received from the United States Department of Labor regarding the Veteran's claim for worker's compensation benefits.  This evidence involves the notice of determination with supporting rationale statement for the denial of the Veteran's compensation claim and contains findings pertaining to her right knee.  There is no waiver of RO review for this additional evidence.  Thus, remand is indicated to afford original consideration of this additional evidence.  38 C.F.R. § 20.1304.


Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with VCAA secondary service connection notice concerning his claims, and make arrangements to obtain any additional medical records of treatment the Veteran has received for left ankle disorder, left knee disorder, and right knee disorder.

2. Once all the available records have been associated the claims folder, arrange for the claims folder to be reviewed by an appropriate examiner in order to provide a medical opinion on the etiology of the Veteran's claimed left ankle disorder.  The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must indicate that the claims file was reviewed in conjunction with the report.

Based on a review of the record, the examiner should:

a)  Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the left ankle disorder is causally or etiologically related to the Veteran's period of active service, to include inservice treatment for inversion injury of the left ankle in 2001

b)  Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the left ankle disorder was caused by, or is aggravated by the Veteran's service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or degenerative disc disease of the thoracolumbar spine.  

If service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or or degenerative disc disease of the thoracolumbar spine aggravates (i.e., permanently worsens) a left ankle disability and/or left knee disability, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

A complete rationale for any opinion expressed should be provided in a legible report.  In doing so, the examiner should reconcile any contrary medical evidence of record, including the 2010 and 2012 private medical statements of record that suggest that the Veteran overcompensates for his right knee disability has led to his current left ankle disorder.

3.  Once all the available records have been associated the claims folder, arrange for the claims folder to be reviewed by an appropriate examiner in order to provide a medical opinion on the etiology of the Veteran's claimed left ankle disorder.  The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination.  The examination report must indicate that the claims file was reviewed in conjunction with the report.

Based on a review of the record, the examiner should: 

a)  Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the left knee disorder is causally or etiologically related to the Veteran's period of active service. 

b)  Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the left knee disorder was caused by, or is aggravated by the Veteran's service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or degenerative disc disease of the thoracolumbar spine.  

If service-connected bilateral bunionectomy, pes planus, and third and fourth hammertoes; right ankle strain; chondromalacia of the right patella; and/or or degenerative disc disease of the thoracolumbar spine aggravates (i.e., permanently worsens) a left ankle disability and/or left knee disability, the examiner should identify the percentage of disability which is attributable to the aggravation.  See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

A complete rationale for any opinion expressed should be provided in a legible report.  In doing so, the examiner should reconcile any contrary medical evidence of record, including the 2010 and 2012 private medical statements of record that suggest that the Veteran overcompensates for his right knee disability has led to his current left knee disorder.

4. Then, after ensuring any other necessary development has been completed and the remand instructions have been complied with, readjudicate the Veteran's service connection and increased rating claim with consideration of evidence received since the most recent supplemental statement of the case.  If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

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