Citation Nr: 1327884 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 06-20 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a bilateral foot disorder. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial compensable rating for rhinitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from August 1982 to October 2004. This appeal to the Board of Veterans' Appeals (Board) is from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in part, granted service connection for rhinitis, rated zero-percent disabling (so noncompensable) beginning the day after the Veteran separated from service, and denied service connection for right knee, tinnitus, and bilateral foot disorders. As support for his claims, the Veteran testified at a hearing at the RO in June 2011 before the undersigned Veterans Law Judge. This type of hearing is more commonly known as a Travel Board hearing. During the hearing the Veteran withdrew some of his claims and the Board subsequently decided the majority of his remaining claims in a June 2012 decision. But the Board instead remanded the claims that were left for additional development. Of the claims the Board remanded in June 2012, the Appeals Management Center (AMC) since has granted service connection for gastroesophageal reflux disease (GERD) in a December 2012 rating decision and service connection for a skin disorder (psoriasis) in an even more recent May 2013 rating decision. The Veteran has not since, in response, separately appealed either the 0 percent ratings or October 26, 2004, effective date assigned for these now service-connected disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). So these claims are no longer in dispute. Only the claims indicated remain since the AMC conversely continued to deny them on remand. The claim for a higher initial rating, i.e., an initial compensable rating, for the rhinitis is being decided. But because still further development is necessary concerning the service-connection claims, the Board is again remanding them to the RO via the AMC. FINDING OF FACT Since the conclusion of his service, which marks the effective date of his award, the Veteran's rhinitis has been manifested by nasal obstruction, but the obstruction on both sides is less than 50 percent and there is not complete obstruction on one side or nasal polyps associated with the disability. CONCLUSION OF LAW The criteria are not met for an initial compensable rating for the rhinitis. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1-4.7, 4.20, 4.21, 4.97, Diagnostic Code (Code) 6522 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In deciding this claim, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to review the entire record, the Board does not have to discuss each and every piece of evidence reviewed, certainly not in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). He therefore must not assume the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to him). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists that does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of the information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on the claimant's behalf. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so-called "fourth" requirement that VA also specifically request that the claimant provide any evidence in his personal possession pertaining to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), since codified at 38 CFR § 3.159(b)(1) (2012). In regards to this claim on appeal for a higher initial rating for the rhinitis, when, as here, the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection for this disability, and this claim since has been granted and he has appealed a "downstream" issue such as the initial disability rating assigned, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claim. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Rather, according to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And the RO provided him this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning a higher initial rating for this disability. He therefore has received all required notice concerning this claim. The RO/AMC furthermore has taken appropriate action to comply with the duty to assist him with this increased-rating claim by obtaining records of his VA outpatient treatment and arranging for him to undergo VA Compensation and Pension examinations assessing and reassessing the severity of this disability. See 38 C.F.R. §4.1 (for purpose of application of the Rating Schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). Although he challenged the adequacy of the February 2005 VA compensation examination, he since has undergone three additional examinations concerning which neither he nor his representative has expressed dissatisfaction. Unless a claimant challenges the adequacy of an examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). But even when this is challenged, the Board may assume the competency of any VA medical examiner as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The Veteran also requested and resultantly was provided a Travel Board hearing in June 2011. According to 38 C.F.R. § 3.103(c)(2), it is the responsibility of the presiding Veterans Law Judge (VLJ) to: 1) explain fully the issues and 2) suggest the submission of evidence that the claimant may have overlooked and that would be advantageous to his position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the presiding VLJ's duties under section 3.103(c)(2) are twofold. First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id., at 496. Second, the presiding VLJ must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. Here, the undersigned presiding VLJ identified the issue on appeal being decided below and during the course of the hearing engaged in an exchange discussion regarding evidence that would be especially relevant to the claim - such as symptoms associated with the disability and consequent impairment that would tend to show entitlement to a higher rating. Moreover, the Veteran did not raise any new issues pertaining to this claim during the course of his hearing. See Bryant, 23 Vet. App. at 497-98. Thus, the Board finds that the presiding VLJ's two-fold duty to inform the Veteran of the outstanding issues relevant and material to the claim and to suggest the submission of evidence that was missing or may have been overlooked was satisfied. See id. at 496-97. The Veteran has not alleged there was any deficiency in the conducting of that hearing, including in relation to the presiding VLJ's duties under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Moreover, even assuming for the sake of argument there was such a deficiency, the Board finds that it did not prejudice his claim. In Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) nonetheless had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication the appellant had any additional information to submit. Given the additional development of this claim by the AMC as a result of the Board remanding this claim in June 2012, the Board finds that any deficiency in the June 2011 Travel Board hearing was non-prejudicial. See id. This is especially true recognizing the Veteran has evidenced his actual knowledge of the type of evidence and information needed to substantiate his claim, including in his responses to the questions posed to him during his hearing. Actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). In accordance with the Board's June 2012 remand, the AMC arranged for another VA examination to obtain information sufficient to properly rate the disability. In Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012), the Court held that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion" Citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The AMC also added VA treatment records and a VA compensation examination report to the Veteran's Virtual VA file. The additional development of this claim directed by the Board's June 2012 remand was completed and all evidence, including constructively of record, obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-4 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). The Board therefore is proceeding with the adjudication of this claim. Legal Criteria and Analysis The Veteran contends that his service-connected rhinitis should be assigned a compensable rating. In his June 2006 substantive appeal to the Board (on VA Form 9), he maintained that he had a substantial amount of nasal blockage and that he consequently had difficulty breathing without medication. In June 2011, he testified that his treatment had reduced the nasal swelling, but that he had polyps. He said a consulting physician had informed him there was 30-percent blockage of each nasal passage. See hearing transcript pages 37 and 38. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history of the disability must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, in a claim for increased rating, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased-rating claim has been pending. In those instances, it is appropriate to "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007) and Fenderson v. West, 12 Vet. App. 119 (1999) (employing this practice regardless of whether the rating being contested is an initial or established rating). Regulations require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, supra. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's rhinitis is rated as noncompensable (0- percent rating) pursuant to the criteria found in Diagnostic Code 6522. This code provides a 10 percent rating for allergic rhinitis without polyps, but with greater than fifty percent obstruction of nasal passage on both sides or complete obstruction on one side. A maximum 30 percent rating is warranted for a diagnosis of allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Code 6522. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Veteran initially underwent a VA compensation examination in February 2005, at which time he reported having no difficulty with his rhinitis as long as he treated it. On physical examination, there was a slight deviation of the septum, but he otherwise looked normal. The examiner also noted the nares were with red mucosa, but she did not comment on whether polyps were present. Another VA compensation examination was performed in December 2006. The Veteran reported feeling as though his nose was obstructed and that he had relief with flonase nasal spray. Although the report indicated the condition had progressively worsened it also indicated that the nasal spray was effective. His then current symptom was excess nasal mucous and he had constant difficulty breathing and his speech was nasally. There was no history of neoplasm, nasal allergy, osteomyelitis, or sinusitis. The examining physician found on examination a 30-percent nasal obstruction, bilaterally, but there was no evidence of a deviated septum, nasal polyps, permanent hypertrophy of turbinates from bacterial rhinitis, rhinoscleroma, tissue loss, scarring, or deformity of the nose, or evidence of Wegener's granulomatosis or granulomatous infection. The physician commented that the Veteran had adequate aeration when breathing through his nose, but that he did have swollen nasal mucosa. An April 2011 letter from a certified VA physician's assistant stated the Veteran was examined and found to have a right nasal polyp and deviated nasal septum to the left. He added the Veteran was treated with nasal irrigations and nasal steroid inhalations. During a June 2011 VA compensation examination, there was no significant change noted in the Veteran's history. He had frequent difficulty breathing, but there was no speech impairment due to his rhinitis. The examiner found no evidence of nasal polyps, deviated septum, permanent hypertrophy of turbinates from bacterial rhinitis, rhinoscleroma, tissue loss, scarring, or deformity of the nose, or evidence of Wegner's granulomatosis or granulomatous infection. The Veteran had been employed for the past 2 to 5 years, and he had not lost any time from work during the past 12 month period. The examiner indicated the Veteran's rhinitis had no significant effect on his occupation or usual daily activities. During an even more recent July 2012 VA compensation examination, the examiner did not find greater than 50-percent obstruction of the nasal passage bilaterally due to the rhinitis. There also was not complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or a granulomatous condition. The examiner further indicated that the Veteran's rhinitis did not impact his ability to work. In consideration of Code 6522 and the evidence of record, a preponderance of the evidence is against finding that a compensable rating is warranted for the rhinitis at any time since the effective date of the grant of service connection for this disability (which, as mentioned, was the day following the conclusion of the Veteran's service, so from the point he returned to life as a civilian). Most notably, he has been shown to have less than 50 percent nasal obstruction in both passages, and he does not have complete nasal obstruction on either side. In fact, he was not shown to have greater than a 30 percent obstruction on either side. And while the April 2011 letter indicated he had a right-sided polyp, which would have met the criteria for 30 percent rating, the Board finds a preponderance of the evidence showed the rhinitis does not have any associated nasal polyps. In concluding this, the Board points out that just some two months later, in June 2011, the Veteran underwent a VA examination that found no evidence of a polyp and he was not shown to have had any procedure between April and June 2011 to remove a polyp. Furthermore, the July 2012 VA compensation examination also found no evidence of a polyp and earlier examinations found no evidence of nasal polyps. Since no significant variation was shown in the disability throughout the course of the appeal, a staged rating is not warranted. Fenderson, supra. Although the Veteran maintains his disability is manifested by polyps and a physician assistant indicated the Veteran had a nasal polyp, there is far more evidence against a finding of polyps than in favor of a finding of polyps. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the claim for an initial compensable rating for the rhinitis must be denied. The Board also has considered rating the Veteran's service-connected rhinitis disability under Codes 6523 and 6524, which concern other types of rhinitis. However, because the record clearly shows this disability is not manifested by any form of granulomatous infection, permanent hypertrophy of turbinates with a greater than 50-percent nasal obstruction on both sides or complete obstruction on one side, or rhinoscleroma, it would be inappropriate to rate this disability under either of these other codes. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). The Board also has considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, though, the severity of the Veteran's disability is contemplated by the schedular rating criteria. His primary symptom is nasal passage blockage that was successfully treated with nasal sprays. This symptom is contemplated by the schedular criteria and is shown not to cause any impairment occupationally or in performing daily activities. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is no indication the average industrial impairment from this disability exceeds that contemplated by the assigned rating. Referral of this case for extra-schedular consideration therefore is not indicated. ORDER The claim for an initial compensable rating for the rhinitis is denied. REMAND The Board sincerely regrets the additional delay before adjudicating the remaining claims, but finds these claims need still further development to be decided fairly. The Board previously remanded these claims in June 2012 for medical opinions concerning the etiologies of these claimed disabilities, and especially in terms of the likelihood they are related or attributable to the Veteran's military service. Although the July 2012 audiology VA compensation examiner provided an opinion against the claim for service connection for tinnitus, the audiologist did not comply with the remand directive to specifically discuss the evidence noted in the Veteran's service treatment records. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, the Board has no discretion but to again remand this claim. Regarding the bilateral foot disorder, the July 2012 VA compensation examiner found the Veteran did not have a diagnosed bilateral foot disorder. However, the Board sees this examination specifically excluded flat feet. Given the Veteran's complaints in service of arch pain in September 1995, a service treatment record in December 1999 showing he had slightly flat arches, and testimony he has worn arch supports since service, the foot examination should have included consideration of whether he has flat feet. Past precedent decisions have indicated that flat feet (pes planus) is sometimes congenital or developmental and other times post-traumatic, so the result of injury. A congenital defect is not a disease or injury within the meaning of applicable legislation and, thus, generally not service connectable for VA compensation purposes as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. See also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. See, too, Winn v. Brown, 8 Vet. App. 510, 516 (1996). VA's General Counsel explained in VAOPGCPREC 82-90 that support for this position could be found in the VA regulations themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities. Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the Veteran's period of active military service beyond its natural progression. If instead the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. Turning next to the claimed right knee disorder, although the July 2012 VA compensation examiner could not diagnose a right knee disorder and found an earlier knee diagnosis was incorrect, the Veteran has consistently complained of right knee pain since separating from service, and there was evidence of right knee tenderness and pain with repetitive motion during his prior February 2005 VA compensation examination. Mere pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). But consideration has not yet been given to whether his symptoms are due instead to an undiagnosed illness based on his Persian Gulf War service. See 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. His service treatment records show he served in Saudi Arabia on a 120-day TDY beginning in July 1998. In a December 2010 statement he reported a decline in health since his service during the Persian Gulf War and that he had aching joints. The Board has a duty to consider this theory of entitlement since VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 Fed. Cir. 2009); Buckely v. West, 12 Vet. App. 76, 83 (1998). Therefore, a VA compensation examination and medical opinion are needed concerning the etiology of this claimed right knee disability insofar as whether it is a manifestation of undiagnosed illness as a result of his Persian Gulf War service. Accordingly, these remaining claims are REMANDED for the following additional development and consideration: 1. Return the Veteran's claims file to the audiologist, if available, who performed the July 2012 VA audiology examination to obtain an addendum opinion as to the likely etiology of the Veteran's claimed tinnitus; otherwise, arrange for a compensation examination with another audiologist. The claims file and a copy of this REMAND must be made available to and reviewed by the audiologist, whoever designated. a) Based on a review of the record, any examination conducted, and the Veteran's reported history, the audiologist must opine as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's current tinnitus incepted during his service or is otherwise related or attributable to his service. b) In offering this opinion, the commenting audiologist must discuss the underlying reasoning or rationale, if necessary citing to specific evidence in the claims file supporting conclusions. This commenting audiologist must also specifically consider and discuss the significance or insignificance of the following records found in the claims file: * The Veteran's DD Form 214 indicating he had exposure to noise during his 22 years of service working in pavement construction and as an equipment operator, also his hearing testimony that he was in close proximity to explosions during his service in the Persian Gulf War. * The report of a hearing conservation examination in July 2004 showing the Veteran gave a positive response to having ringing in his ears. * An October 1993 service treatment record showing the Veteran reported sometimes hearing "ocean wave noise" in his ears. * A Hearing Conservation Data sheet with the Veteran's June 1984 audiogram and July 2004 audiogram results showing that, in the 6000 Hertz range the findings in the left ear went from 5 decibels in 1984 to 35 decibels in 2004, and in the right ear from 10 decibels in 1984 to 40 decibels in 2004. A second audiogram a week later in July 2004 indicating findings of hearing acuity of 40 decibels at 6000 Hertz in the left ear and of 50 decibels at 6000 Hertz in the right ear. * An August 2004 clinical note in the Veteran's service treatment records indicating he had high frequency hearing loss in his left ear that was most likely noise-induced. 2. Also schedule the Veteran for a VA compensation podiatry examination that specifically addresses flat feet to determine the likely etiology of his bilateral arch pain. The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner. All appropriate testing should be performed. a) The examiner should specifically indicate whether the Veteran has pes planus (flat feet). b) If confirmed he does, specify whether it is a congenital or developmental "disease" or "defect." For comparison, a disease generally is subject to fluctuations, including in its severity, whereas a defect tends to be more stable. i) If the claimed disorder is a disease, an opinion is needed as to whether it was as likely as not aggravated by the Veteran's period of active military service beyond its natural progression. ii) If instead the claimed disorder is a defect, an opinion is needed as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in additional disability apart from the congenital or developmental defect. The examiner must discuss the underlying reasoning or rationale of the opinion, if necessary citing to specific evidence in the file. The examiner must also specifically address the following records: * A September 1995 service treatment record showing complaints of bilateral arch pain. * A February 1998 service treatment record noting the use of arch supports in service. * A December 1999 service treatment record containing a finding of slight flat arches and mild eversion of the forefoot. * The Veteran's hearing testimony that he has continued to use arch supports since service. 3. As well, schedule the Veteran for a VA orthopedic examination to address his claimed right knee disorder, including his alleged chronic joint pain. The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner. All appropriate testing should be performed. a) Based on an examination of the Veteran's right knee, review of the claims file, and history provided by the Veteran, the examiner should specifically determine the likelihood (very likely, as likely as not, or unlikely) that the Veteran's right knee complaints of pain and tenderness, etc., are attributable to a known underlying clinical diagnosis. b) If the right knee complaints are attributable to a known clinical diagnosis, opine as to the likelihood the disorder had its onset during his service or is otherwise related or attributable to any event or incident of his service. c) If his right knee complaints are not attributable to a known diagnosis, specify whether he has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, which have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. For each opinion expressed, the examiner must provide discussion of the underlying reasoning or rationale. The examiner should specifically reference any pertinent evidence of record to include the complaints of right knee pain noted in service and since service. These explanations are imperative regardless of whether the opinions are in favor of or against the claim. 4. Ensure the opinions provided by the VA examiners are responsive to the questions posed. If not, then take corrective action. 38 C.F.R. § 4.2 (2012). See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). 5. Then readjudicate these remaining claims for service connection in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and his representative another supplemental statement of the case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of any denied claim. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs