Citation Nr: 1328753 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-04 297 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left ankle disability. 2. Entitlement to service connection for lumbar spine disability. 3. Entitlement to service connection for left knee disability, to include a meniscal tear (claimed as left leg disability). 4. Entitlement to service connection for respiratory disability, to include chronic bronchitis. 5. Entitlement to an initial rating in excess of 10 percent for post concussion syndrome with headaches. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to February 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2009 rating decision in which the RO, inter alia, denied service connection for disabilities of the left ankle, left knee/leg, lumbar spine, and respiratory system. In that decision, the RO also granted service connection for post concussion syndrome with headaches, poor balance, and dizziness, associated with traumatic brain injury (TBI) and assigned an initial 10 percent rating, effective May 19, 2008. Effective October 23, 2008, the RO discontinued the 10 percent rating for TBI and awarded a separate, 10 percent rating for post concussion syndrome with headaches. In August 2009, the Veteran filed a notice of disagreement (NOD) as to the denials of service connection as well as to the assignment of a 10 percent rating for headaches associated with TBI. The RO issued a statement of the case (SOC) in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. In his December 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. The requested hearing was scheduled for May 2012 and notice to that effect was mailed to the appellant in March 2012. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the appellant failed to report for the scheduled hearing, and has not requested rescheduling of the hearing. As such, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). In September 2012, the Board remanded the Veteran's claims to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claims (as reflected in an April 2013 supplemental SOC (SSOC)) and returned the matters on appeal to the Board for further consideration. Because the Veteran has disagreed with the initial rating assigned following the grant of service connection for his post concussion syndrome with headaches, the Board has characterized this issue on appeal in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claims. A review of the documents in such file reveals that additional VA treatment records from the VA Medical Centers in Bay Pines, Florida and Nashville, Tennessee were associated with the Veteran's record. Moreover, these records were considered by the RO in its most recent April 2013 SSOC. The Board's decision addressing the claims for service connection for a lumbar spine disability and respiratory disability, and for an initial higher rating for post concussion syndrome with headaches is set forth below. The remaining claims on appeal are addressed in the remand following the order; these matters are being remanded to the RO via the AMC. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. Although the service treatment records reflect complaints of low back pain, there is no credible evidence of any low back disability continuing since service; and the only medical opinion on the question of whether there exists a medical nexus between the Veteran's current lumbar spine disability first manifested many years post service and service weighs against the claim. 3. The only medical opinion on the question of whether there exists a medical nexus between the Veteran's current respiratory disability, diagnosed as chronic bronchitis, first manifested many years post service and service weighs against the claim. 4. The Veteran's post concussion syndrome with headaches have not been productive of characteristic prostrating attacks occurring on average once a month over the last several months. 5. At all times pertinent to the current claim, the schedular criteria have been adequate to evaluate the Veteran's post concussion syndrome with headaches. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for a respiratory disability, to include chronic bronchitis are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 3. The criteria for an initial rating in excess of 10 percent for post concussion syndrome with headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3,321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8045 (2008), Diagnostic Codes 8045-8100 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a June 2008 pre-rating letter, the RO provided notice to the appellant explaining what information and evidence was needed to substantiate his claims for service connection decided herein, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the appellant with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The August 2009 rating decision reflects the initial adjudication of the claims after the issuance of this letter. Hence, the June 2008 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records as well as post-service VA treatment records identified by the Veteran. Also of record and considered in connection with the claims are various written statements provided by the appellant and by his representative, on his behalf. The appellant has not identified any additional post-service medical evidence that must be obtained as relevant to his claim herein decided. Thus, the Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. As noted, the Board sought further development of the claim in September 2012. In September 2012, the Board instructed the RO/AMC to obtain any additional VA treatment records from the Bay Pines, Florida VA Health Care System (VAHCS) (dated since January 1, 1999), from the Cincinnati, Ohio VA Medical Center (VAMC) (dated prior to July 16, 1998, and from the Nashville, Tennessee VAMC (dated since February 1975) and send the Veteran another letter requesting any additional evidence. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examinations with respect to the issues on appeal after all the pertinent records were associated with the claims file. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In September 2012, the RO/AMC sent a letter to the Veteran requesting information concerning any additional information and evidence with respect to his claims. The RO obtained the additional VA treatment records identified from the Bay Pines, Florida, Cincinnati, Ohio and Nashville, Tennessee VAMCs, which have been associated with the Veteran's Virtual VA electronic record or claims file. The Board observes that the only records received from the Nashville, Tennessee VAMC were dated in March 2012. Although the RO requested records from the Nashville, Tennessee VAMC since 1975, the Nashville VAMC responded that these were the only records it had for the Veteran. In April 2013, the RO contacted the Veteran informing him that it was unable to obtain any additional records and asked him if he had any records or knew where the record may be located. The Veteran responded that he did not. Subsequently, that same month, the RO prepared a Forma Finding of Unavailability of any additional records from the Nashville VAMC. Moreover, the Veteran was afforded additional VA examinations in April 2013. The examiners exhibited sufficient medical expertise to perform the examinations and the examinations are adequate for appellate review with respect to the issued herein decided. Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the appellant has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with these claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006)(rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and arthritis becomes manifest to a degree of l0 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology . See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A. Lumbar Spine Disability The Veteran is seeking service connection for a lumbar spine disability. In statements of record, he has asserted injuring his low back while in service due to his physically demanding duties as a parachute rigger. Considering the evidence in light of the governing legal authority, the Board finds that the claim for service connection for a lumbar spine disability must be denied. Service treatment records showed that in July 1974, the Veteran presented complaining of lumbosacral pain for about six months, but the pain had become more severe in the last five days. There was no injury, but it was observed that his work involved heavy lifting. The impression was muscle strain. A contemporaneous x-ray showed metallic chips in right lower quadrant. Importantly, a February 1975 service examination prior to discharge showed that the Veteran exhibited mild tenderness in the bilateral sacroiliac areas. In his contemporaneous medical history, the Veteran also reported recurrent back pain. The first post service medical evidence of any back problems is dated in October 1997, approximately 22 years after the Veteran's discharge from service, when the Veteran presented at the VA complaining of back pain for two days after falling off an eight foot tall ladder. The Veteran did not mention any prior injuries. The impression was contusion/lumbar strain. However, an October 1997 X-ray showed degenerative disc disease of the lower lumbosacral spine. Follow up treatment records beginning in July 1998 continued to show complaints of low back pain. A September 2008 x-ray again showed L4-5 and L5-S1 degenerative disc disease and associated degenerative changes that showed interval progression since January 2005. In May 2008, the Veteran filed his initial claim for service connection for a low back disability. The Veteran was afforded a VA examination in July 2009. The Veteran reported injuring his back as a consequence of being a rigger in service. He reported multiple visits for low back pain while in service. He further asserted that his pain has gotten progressively worse since that time. Nevertheless, after reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's lumbar disc disease was not related to events that occurred in military service as the Veteran was not diagnosed with lumbar disc disease in service and had no trauma in service. However, in its prior remand, the Board found this examination to be inadequate as it did not address the incidents in service, the lay evidence, and appeared to be mistaken as to the date of the first post-service medical evidence. On remand, he was afforded another VA examination in April 2013. The claims file was reviewed. The Veteran reported that he began having back trouble while on active duty and he was seen for back pain in 1974 and diagnosed with muscle strain. The Veteran also stated that about one year after service, he went to the chiropractor to get his back in shape. He had done construction work and truck driving. He also indicated that he was unable to work construction because of his back pain. The examiner provided the following diagnoses for the low back: lumbar strain, degenerative disc disease and lumbosacral spondylosis. After examining the Veteran, the examiner determined that the claimed condition was less likely than not (less than 50 percent) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that that the Veteran was seen and treated for a lumbar strain while on active duty in 1974. His separation physical noted mild tenderness in the sacroiliac region. However, there were no medical records until October 1997 when he was seen and treated for back pain after falling off a ladder. The examiner stated that the Veteran currently had a diagnosis of degenerative disc disease which most likely was a result of working construction for many years. The examiner rationalized that lumbar strain refers to lumbar muscle, not discs, and does not cause degenerative disc disease. While the Veteran's in-service duties could cause muscle strain, it would not cause his current disc disease. As indicated, in this case, the Veteran has asserted that he had back trouble while in service and service treatment records do support this contention. However, he appears to have also alleged that he has had continuing low back pain since service. The Board recognizes that the Veteran is competent, as a layperson, to report that about which he has personal knowledge, to include his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such report must be weighed against the medical and other evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, the Board finds that the Veteran's statements regarding any purported continuity of low back symptoms since service are not credible and, thus, cannot serve to provide a basis for a finding of service connection for current low back degenerative changes. The Board notes that the first objective indication of a low back disability is noted in an October 1997 VA medical record, which indicates that he injured his back when he fell off a ladder-approximately 22 years after the Veteran's discharge from service. As there was no evidence of arthritis within one year of discharge, the in-service incurrence of arthritis may not be presumed. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds it significant that there is no medical evidence of any back problems prior to the October 1997 record. Moreover, at the time of receiving treatment in 1997, the Veteran was silent with respect to any history of low back problems. Again, if the Veteran was experiencing continuing low back problems, it would be reasonable to assume that he would have reported them when seeking treatment. Moreover, the first claim filed with respect to the low back was in May 2008, many years after discharge. It would also be reasonable to assume that if the Veteran had been experiencing low back pain since service, he would have reported it sooner. These discrepancies weigh against the Veteran's credibility as to pertinent symptomatology since service. Furthermore, there is no medical evidence or opinion even suggesting a medical nexus between the Veteran's current low back disability and the Veteran's service. On the contrary, after reviewing the claims file, taking a thorough medical history from the Veteran, and examining the Veteran, the most recent April 2013 VA examiner opined that the Veteran's current low back disability was not related to service and offered a rationale for such opinion. The Board accepts this opinion as probative of medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Importantly, neither the Veteran nor his representative has presented or identified any contrary medical evidence or opinion-i.e., that actually supports the claim.. Finally, the Board notes that, to whatever extent statements by the Veteran and/or his representative have been offered for the purpose of establishing that there exists a medical nexus between current low back disability and service, such evidence provides no basis for allowance of either claim. Matters of diagnosis and etiology of the disability is one within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a lumbar spine disability must be denied. In reaching the conclusion to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Respiratory Disability, to include Chronic Bronchitis The Veteran is also seeking service connection for a respiratory disability, to include chronic bronchitis, which he claims began in service. With respect to this issue, the Board notes that a Veteran's disability shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service if it resulted from injury or disease attributable to the use of tobacco products by a Veteran during active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. Considering the record in light of the above-noted legal authority, the Board finds that service connection for a respiratory disorder, to include chronic bronchitis, must be denied. Service treatment records showed that a January 1973 chest X-ray revealed an irregular density in the right upper lung field. Additionally, the February 1975 separation physical examination report noted a history of chronic cough due to excessive smoking and a diagnosis of mild diffuse late inspiratory wheezing. Again, the Veteran filed his current claim in May 2008. VA treatment records have been reviewed, but are silent with respect to any sort of etiology for any current respiratory disability. However, they do document an ongoing history of smoking on the part of the Veteran. At the July 2009 VA examination, the Veteran reported trouble catching his breath sometimes that had begun about five years prior. The examiner diagnosed chronic bronchitis and opined that it was less likely related to service as the Veteran was not diagnosed with chronic bronchitis in service and did not report an onset of symptoms until five years ago. The examiner acknowledged that the Veteran reported during the examination that he was diagnosed with a chronic cough at separation, but noted that a 2003 VA treatment record showed a history of only occasional cough. As the VA examiner failed to discuss the pertinent service treatment records, the Board also found that this opinion was inadequate and remanded the case for another VA examination. At the April 2013 VA examination, the examiner again diagnosed chronic bronchitis. The Veteran reported shortness of breath for about 10 years. He had not been given a specific diagnosis. He used to smoke about two to three packs of cigarettes a day, but could no longer afford it so he currently smoked about half a pack per week. The examiner observed that the Veteran was noted to have a chronic cough from smoking on his separation physical. After examining the Veteran, the examiner determined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner observed that the Veteran had a history of heavy tobacco use. He smoked while on active duty and continued to smoke. The examined found that 1973 x-ray showing a lung density in the right upper lung field was most likely due to a respiratory infection that was treated and resolved. His current x-ray showed no density in the right lung. As such, the examiner opined that the wheezing noted on separation physical was most likely due to his tobacco use. There is no evidence of a chronic respiratory disability for many years after the Veteran's discharge from service. Although there was wheezing noted at discharge, at the 2009 VA examination, the Veteran himself claimed that his symptoms began five years prior and at the 2013 examination that they had began 10 years prior. In other words, the Veteran himself has indicated that his respiratory symptoms began approximately in 2003 or 2004, which was over 30 years after his discharge from service. The Board points out that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Here, the lack of any evidence (or even lay assertions) of symptoms that have continued since service to the present day preponderates against awarding service connection. Moreover, the Veteran's respiratory disability is not considered a chronic disease under 38 C.F.R. § 3.303 and thus, service connection cannot be awarded on the based upon a showing of continuity of symptomatology . See Walker v, cited above. As such, in order to establish service connection, there must be some competent evidence establishing that a respiratory disorder was incurred during service. See 38 C.F.R. 3.303(d). However, there is no competent evidence or opinion even suggesting that there exists a medical nexus between a respiratory disorder diagnosed so many years after the Veteran's discharge and any incident of service. After reviewing the claims file, taking a thorough history from the Veteran, and examining the Veteran, the VA examination performed in April 2013 by a medical professional clearly found that the Veteran's diagnosed chronic bronchitis was not related to service, but rather was due to ongoing tobacco use and, as discussed above, provided a detailed rationale for such finding. The Board accepts this opinion as probative of medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Importantly, there is no competent medical evidence of record to refute this opinion. Again, service connection may not be awarded on the basis of tobacco use in service. Furthermore, again, as for any direct assertions by the Veteran and/or his representative that there exists a medical relationship between a current respiratory disorder and service, the Board notes that the matter of the etiology of the disability is one within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on the medical matter upon which each of these claims turn. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, on these facts, lay assertions of medical nexus have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a respiratory disorder, to include chronic bronchitis, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as a preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. Initial Rating for Post Concussion Syndrome with Headaches Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is entitlement to higher rating following the initial award of service connection, evaluation of the medical evidence to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. As noted above, the RO granted service connection for post concussion syndrome with headaches, poor balance, and dizziness, associated with traumatic brain injury (TBI) and assigned an initial 10 percent rating, effective May 19, 2008, in the appealed August 2009 rating decision. In the same decision, effective October 23, 2008, the RO discontinued the 10 percent rating for TBI and awarded a separate, 10 percent rating for post concussion syndrome with headaches. The residuals of the Veteran's head injury, including his headaches, are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8045-8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 8100 addresses migraines. A 10 percent rating is assigned for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Traumatic brain disease was previously rated under Diagnostic 8045, which provides that purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). The protocol for traumatic brain injuries (TBIs) were revised shortly after the Veteran filed his claim for service connection. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For a claim, as here, received by VA prior to that effective date, a Veteran is to be rated under the old criteria preceding that date, but under the new criteria or the old criteria, whichever are more favorable, from that date onwards. The claim is to be rated under the old criteria unless applying the new criteria results in a higher disability rating. See VBA Fast Letter 8-36 (October 24, 2008). Revised Diagnostic Code 8045 states there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for SMC for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5): A veteran whose residuals of a TBI are rated under a version of § 4.124a, diagnostic code 8045, in effect before October 23, 2008 may request review under diagnostic code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For the purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 CFR 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective October 23, 2008). Considering the pertinent evidence in light of the applicable criteria, the Board finds that, at no point since the effective date of the award of service connection has the Veteran's post concussion syndrome with headaches warranted a rating in excess of 10 percent. VA treatment records a few years prior to the Veteran filing his claim in May 2008 showed that his headache severity had increased approximately in April 2005. Otherwise, these records do not address the severity of the Veteran's headaches for rating purposes. The Veteran underwent a VA examination in July 2009. The claims file was reviewed. The Veteran reported headaches, sleep disorder, dizziness, poor balance, tinnitus and hearing loss and blurry vision. The Veteran reported migraines from occipital to frontal shooting to eyes, daily and severe to moderate. He reported eight to 10 episodes of dizziness a day that were moderate to severe. It was noted that the Veteran had an antalgic gait due to his left leg pain. He was hypersensitive to lights and sounds and experienced blurry dots. On examination, reflexes, sensory and motor examinations were all normal. No cognitive impairment or other residuals were observed. The examiner's impression was post concussion syndrome with headaches, poor balance and dizziness caused by TBI with loss of consciousness in service. The examiner indicated that headaches were most likely caused by cervicogenic whiplash during incidence that was service-connected. However, the late onset of sleep disorder was less likely caused by post concussion syndrome. It was noted that there were significant effects on the Veteran's occupation due to decreased concentration and pain resulting in increased absenteeism, but there were no effects on his daily activities. In his notice of disagreement, the Veteran reported experiencing severe headaches. In the September 2012 remand, the Board determined that another examination was necessary to clearly address the severity of the Veteran's headaches. The Veteran was afforded a VA examination in April 2013 to address the severity of post concussion syndrome with headaches. The claims file was reviewed. The examiner affirmed the current diagnosis of post concussive syndrome. The examiner observed that most of the Veteran's complaints pertained to his neck and back conditions. The Veteran reported that his headaches were associated with his neck condition. When experiencing headaches, he was not able to think clearly at times and he got drowsy if he took pain medication. With respect to TBI-related cognitive impairment, the Veteran had no complaints of impairment of memory, attention, concentration or executive functions; he exhibited normal judgment; his social interaction was routinely appropriate; he was always oriented to person, time, place and situation; he exhibited normal motor activity; and he had normal visual spatial orientation. His only subjective symptoms were mild or occasional headaches and mild anxiety. His symptoms did not interfere with work or activities of daily living. There were no neurobehavioral effects and he exhibited normal consciousness. The residuals of TBI observed were hearing loss and/or tinnitus; gait, coordination and balance; headaches; and dizziness and vertigo. The examiner observed that a January 2008 MRI showed no evidence of acute intracranial abnormality. The examiner determined that the Veteran's residual conditions did not impact his ability to work. The Veteran reported that he was no longer working secondary to his neck and back condition. With respect to the Veteran's headaches, the Veteran again reported that his headaches had increased lately and felt they were secondary to his cervical spine condition because when his neck hurt, his headaches got worse. The Veteran stated that he experienced throbbing pain at the back of his neck on his right that radiated up to the right frontal area. The headaches were constant and mild, but could become sharp and stabbing, which happened twice a day and lasted from 15 minutes to two hours. The Veteran experienced sensitivity to light as well. However, the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. The examiner observed that the Veteran's cervical spine disease was more likely than not causing increasing tension headaches. It was noted that the MRI studies showed mid to lower cervical spine degenerative discopathy/facet joint arthropathies associated with small annular disc bulges with secondary central spinal canal stenosis and neuroforaminal narrowing at the specific levels. With respect to his dizziness, the Veteran reported that his dizziness and balance problems were intermittent. The Veteran did not have any vestibular conditions. The examiner also noted that on examination of the ears, the Veteran had serous otitis bilaterally with swollen pale turbinates. It was noted that the Veteran may have allergies that can contribute to headaches and some dizziness. The Veteran had an antalgic gait secondary to back and leg (radicular) pain. The examiner indicated that the Veteran's ear or peripheral vestibular conditions did not impact his ability to work. Again, it was noted that the Veteran was not working secondary to his neck and back conditions. Initially, the Board observes that a higher rating under the old criteria prior to October 23, 2008 is not warranted as the rating criteria clearly states that purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304 and will not be combined with any other rating for a disability due to brain trauma. Again, ratings in excess of 10 percent for brain disease due to trauma under diagnostic code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. As the medical evidence clearly shows only subjective complaints and no sign of dementia, a higher rating was not warranted under the old criteria for traumatic brain injury. Moreover, under the new criteria, the Veteran has already been awarded separate ratings for his diagnosed dizziness with poor balance and tinnitus. As the Veteran did not appeal the ratings assigned to these disabilities, they are not currently before the Board. Rather, the only area of dysfunction currently before the Board associated with the Veteran's TBI is headaches. Under Diagnostic Code 8100, although the Veteran may suffer headaches on a frequent basis, the evidence is against a finding that the attacks are characteristic prostrating attacks. The rating criteria under Code 8100 looks not only to frequency, but also to the severity of the headaches. The Veteran's descriptions do not appear to show characteristic prostrating attacks averaging once a month over the last several months. Importantly, the April 2013 VA examiner clearly found that the Veteran did not have characteristic prostrating attacks of migraine or non-migraine headache pain. After reviewing the totality of the evidence, the Board is left with the impression that the headaches do not actually result in prostrating attacks that occur at least once a month to warrant a higher disability rating. The Board notes that, in reaching the above-noted determinations, the Veteran's own assertions, and those of his representative, advanced in written statements, have been considered. However, the Board finds that the lay assertions made in support of his claim for higher initial rating are not entitled to more weight than the objective findings rendered by trained medical professionals in evaluating the Veteran's post concussion syndrome with headaches. See 38 C.F.R. § 3.159 (a)(1); Bostain, 11 Vet. App. at 127; Routen. 10 Vet. App. at 186. As discussed above, the persuasive evidence indicates that the Veteran's post concussion syndrome with headaches are consistent with the assigned ten percent rating. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any point since the May 19, 2008 effective date of the award of service connection has the Veteran's service-connected post concussion syndrome with headaches reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). 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 this 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. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or 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. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration at all pertinent points. The rating schedule fully contemplates the described headache symptomatology, to include frequency and severity, and provides for ratings higher than that assigned based on more significant functional impairment. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further ,the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the evidence has clearly showed that the Veteran is no longer working due to neck and back disabilities, for which he has not been awarded service connection. In fact, the most recent VA examiner in April 2013 clearly found that the Veteran's service-connected headaches did not impact his ability work. Accordingly, as there is no evidence that his service-connected headaches affect his ability to work, there is no need for further analysis with respect to this matter. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the disability under consideration, pursuant to Fenderson (cited above), and that an initial rating in excess of 10 percent for post concussion syndrome with headaches must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53- 56. ORDER Service connection for lumbar spine disability is denied. Service connection for a respiratory disability, to include chronic bronchitis, is denied. An initial rating in excess of 10 percent for post concussion syndrome with headaches is denied. REMAND Unfortunately the Board finds that further RO action on the remaining claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters.. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board previously remanded this case in September 2012 to obtain an addendum opinion to the July 2009 VA examination as it was found to be inadequate due to a lack of sufficient rationale or afford the Veteran another VA examination with respect to his claimed left leg (knee) disability. The Veteran was afforded another VA examination in April 2013. The examiner indicated that it was impossible to determine whether the Veteran's current knee condition was related to his pre-service fractured femur without resorting to mere speculation. She then commented that the Veteran had degenerative joint disease and a meniscal tear. There was no mention of knee condition on separation physical. Moreover, the Veteran had indicated that he worked in construction for many years as a floor tile layer and this was most likely the cause of his current knee condition and not his military service. The examiner also noted a history of falls. At the outset, the Board observes that, although the examiner appeared to indicate that the Veteran's knee condition was not related to service in her rationale, the examiner did not offer a clear etiological opinion as directed in the prior remand, and, in fact, indicate that rendering such opinion was impossible. Hence, the examiner's comments are internally inconsistent. Additionally, as with the prior July 2009 VA examination, relevant service treatment records were not discussed, including evidence of leg pain complaints during basic training (diagnosed as shin splints). Likewise, the examiner's explanation as to why an opinion could not be provided regarding aggravation is wholly inadequate, as the examiner failed to provide any explanation why such was the case. See also Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that the Board may only rely on an opinion that a finding cannot be rendered without resort to speculation only if it is supported by an explanation of the basis for such an opinion or if the basis is otherwise apparent in the Board's review of the evidence). Hence, the RO should arrange for the Veteran to undergo VA orthopedic examination, by another appropriate physician (preferably, one who has not previously examined him), at a VA medical facility (or VA contract facility). The Veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in denial of the original claim(s) (as the original claim(s) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655(a),(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to her by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. The RO should obtain and associate with the claims file all outstanding VA medical records. The Veteran's paperless, electronic (Virtual VA) folder currently includes outpatient treatment records from the Bay Pines VAHCS dated from February 2013. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In light of the foregoing, the RO should obtain any additional VA treatment records from February 2013 to the present from the Bay Pines VAHCS. In requesting these records, the RO should follow the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain all outstanding outpatient treatment records from the Bay Pines VAHCS from February 2013 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, arrange for the Veteran to undergo a VA orthopedic examination, by an appropriate physician (preferably, one who has not previously examined the Veteran), at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all current disability(ies) of the right ankle/leg/knee, including degenerative joint disease and meniscal tear of the right knee. If there are no separate disabilities of the right ankle and leg, such should be clearly noted. Then, with respect to each such diagnosed disability, the examiner should render an opinion- consistent with sound medical judgment and based on consideration of the Veteran's in-service and post-service medical history and assertions-as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that this disability results from aggravation (i.e., permanent worsening beyond natural progression) of the preexisting fracture during service, or that the disability had its onset in, or is otherwise medically-related to, the Veteran's military service, to include injury/complaints therein;. In rendering the requested opinion, the physician should specifically consider and discuss service treatment records evidencing complaints of leg pain during basic training, as well as the Veteran's own lay assertions regarding his medical history. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims for service connection in light of all pertinent evidence (to include all that associated with the claims file since the RO's last adjudication) and legal authority. 8. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and afford them an appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs