Citation Nr: 1331000 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 11-00 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a total disability rating due to individual unemployability (TDIU). 2. Whether new and material evidence has been received in order to reopen a claim for service connection for a right knee disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received in order to reopen a claim for service connection for a low back disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received in order to reopen a claim for service connection for a right ankle disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted. 5. Whether new and material evidence has been received in order to reopen a claim for service connection for a left ankle disorder, to include as secondary to a service-connected cervical spine disorder and, if so, whether service connection is warranted. 6. Entitlement to service connection for a right hip disorder, to include as secondary to service-connected a cervical spine disorder. 7. Entitlement to service connection for a left hip disorder, to include as secondary to service-connected a cervical spine disorder. REPRESENTATION Veteran represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from December 1952 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Sioux Falls, South Dakota Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied the Veteran's requests to reopen claims for service connection for a right knee disorder, a lumbar spine disorder and a right and left ankle disorder. In addition, his claims for service connection for a right and left hip disorder were denied. In addition, the Veteran appeals from an October 2011 rating decision which, in pertinent part, denied his claim for TDIU. A review of the paperless, electronic (Virtual VA) claims processing system reveals VA treatment records dated through January 2013 as well as a February 2013 VA examination report. A March 2012 supplemental statement of the case (SSOC) noted consideration of VA treatment records dated through March 2012. The Veteran has not waived RO consideration of the VA treatment records dated after March 2012 or the February 2013 VA examination report. With regards to VA treatment records dated after March 2012 and the February 2013 VA examination report, and to the extent that the benefits sought have been fully allowed on appeal, a waiver of RO consideration of these records is not required. Moreover, the remaining claims on appeal are being remanded, which will allow for RO consideration of these records. See 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to a TDIU as well as the requests to reopen claims for service connection for a right knee disorder, a low back disorder and a bilateral ankle disorder are addressed below. The remaining claims remaining on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The competent evidence on the question of whether the Veteran is unable to secure and maintain substantially gainful employment as a result of his various service-connected disabilities, including his cervical degenerative joint disease, upper extremity radiculopathy and bilateral shoulder degenerative joint disease is, at least, in relative equipoise. 2. In a final decision issued in August 2003, the RO denied the Veteran's claim of entitlement to service connection for a right knee condition. 3. Evidence added to the record since the final August 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee condition. 4. In a final decision issued in March 2004, the RO denied the Veteran's claim of entitlement to service connection for a low back condition. 5. Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back condition. 6. In a final decision issued in March 2004, the RO denied the Veteran's requests to reopen a claim of entitlement to service connection for a right ankle condition. 7. Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's requests to reopen a claim of entitlement to service connection for a right ankle condition. 8. In a final decision issued in March 2004, the RO denied the Veteran's requests to reopen a claim of entitlement to service connection for a left ankle condition. 9. Evidence added to the record since the final March 2004 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's requests to reopen a claim of entitlement to service connection for a left ankle condition. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.341, 4.1, 4.16 (2012). 2. The August 2003 rating decision that denied the Veteran's claim of entitlement to service connection for a right knee disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 4. The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a low back condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 5. New and material evidence has been received to reopen the claim of entitlement to service connection for a low back condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 6. The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a right ankle condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 7. New and material evidence has been received to reopen the claim of entitlement to service connection for a right ankle condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 8. The March 2004 rating decision that denied the Veteran's claim of entitlement to service connection for a left ankle condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 9. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ankle condition. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As the Board's decisions to reopen the Veteran's claims of entitlement to service connection for a right knee disorder, a lumbar spine disorder and a bilateral ankle disorder as well its decision to grant entitlement to TDIU are completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of the reopened claims is deferred pending additional development consistent with the VCAA. II. TDIU The Veteran contends that he is unable to work due to his various service-connected disabilities, including the symptomatology associated with his service-connected cervical spine, upper extremity radiculopathy and bilateral shoulder disorders. The Board finds that the preponderance of the evidence favors that position and hence TDIU is warranted. A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term unemployability, as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a living wage). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that a veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether a veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Veteran's current service-connected disabilities include cervical degenerative joint disease, rated as 30 percent disabling; dysphagia associated with cervical degenerative joint disease, rated as 30 percent disabling; left upper extremity cervical radiculopathy, rated as 20 percent disabling; right and left lower extremity varicosities, each rated as 10 percent disabling; hemorrhoids, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; right and left hand degenerative joint disease of the interphalangeal, each rated as 10 percent disabling and right and left shoulder degenerative joint disease, each rated as 10 percent disabling. His combined rating is 90 percent. See 38 C.F.R. § 4.25. This combined rating satisfies the statutory requirements for TDIU. See 38 C.F.R. § 4.16(a). In an April 2011 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran stated that he had a high school education. He indicated that he had worked as an aviation mechanic during service and he last worked full-time in 1996 as mechanic. He reported that he had worked part-time in a customer service position from 1997 to 2010. Turning to the question of whether the Veteran is unable to secure or follow any form of substantially gainful occupation due to his service-connected disabilities, the Board notes that the record contains several opinion which must be considered and weighed. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The first of these opinions is reflected in an April 2012 opinion from the Veteran's treating VA physician. The physician opined that it was doubtful that the Veteran would be able or work or maintain a full-time job in view of all of his service-connected disabilities and that the Veteran's service-connected disabilities would likely prevent him from being gainfully employed. The Board also notes an April 2011 statement from the Veteran's former employer, who indicated that the Veteran was not reappointed to his customer service position in 2011 due to his arthritic conditions, including his back and shoulders, and detailed the difficulty the Veteran had in physically performing the various administrative tasks required for his job. The second of these opinions is reflected in a July 2012 examination report. The VA examiner opined that the Veteran's service-connected disabilities did not preclude him from light-desk type work-such as answering a telephone and light computer work-as long he was afforded appropriate rest breaks. However, this examiner did not address the April 2011 statement from the Veteran's former employer. In the instant case, the Board can find no reason to accord more probative weight to the VA examiner's opinion or to the VA provider's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). In this regard, both opinions were provided by qualified medical professionals. Moreover, each medical opinion reflects consideration of the Veteran service-connected disabilities and his employment history. In sum, the record contains a competent opinion indicating that the Veteran was unable to secure or follow a substantially gainful occupation due to impairment resulting from his service-connected disabilities, and another competent, seemingly equally probative opinion indicating that the Veteran was able to secure or follow substantially gainful occupation, specifically light-desk type work. As the medical opinion evidence on the question of whether the Veteran was able to secure or follow substantially gainful occupation is, essentially, in relative equipoise, the Board finds that such evidence, collectively, indicates that he is not able to do so. 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, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the facts of this case, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for TDIU are met. III. Petitions to Reopen A. Pertinent Statutes and Regulations Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Right Knee The Veteran previously claimed entitlement to service connection for a right knee disorder in September 2002. In an August 2003 rating decision, the RO denied service connection as the service treatment records were negative for complaints, treatments or diagnosis of a right knee disorder and the post-service treatment records did not show evidence relating his right knee to service. The Veteran did not appeal this August 2003 rating decision and it is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a right knee disorder was received prior to the expiration of the appeal period stemming from the August 2003 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence received since the August 2003 rating decision consists of VA treatment records dated through November 2012, a December 2008 opinion from Dr. J. M., a July 2009 VA examination report and the Veteran's lay statements. In this regard, the December 2008 opinion from Dr. J. M. indicated that the Veteran's military activities have likely been the source of attritional changes and degenerative findings that were currently producing lower extremity difficulties. A July 2009 VA examiner opined that the Veteran's right knee degenerative joint disease was less likely as not caused by, a result of, or aggravated by his cervical spine disorder as his cervical spine disorder caused some loss of motion but did not cause him significant amounts of pain by his history, that physical examination did not show that the cervical spine disorder caused him any mechanical issues that could cause pain or problems in the knee and that the available medical literature did not demonstrate that a cervical spine disorder can cause osteoarthritis or arthralgias in the lower extremities. The Veteran has also submitted statements describing symptoms through the present time. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno, supra. Presuming the credibility of the Veteran's statements pursuant to Justus and in light of the newly submitted opinion from Dr. J. M. that addresses a potential nexus between the Veteran's right knee disorder and service, the Board finds that the evidence received since the August 2003 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection. See 38 C.F.R. § 3.156(a). In this regard, the Veteran's claim for a right knee disorder was previously denied as there was no nexus to service. The RO had determined that a VA examination to address the etiology of such a disorder was necessary to decide the claim. See Shade, supra. Moreover, while the July 2009 VA examiner offered a negative opinion, such addresses the etiology of the Veteran's right knee disorder and, as such, offers a more complete view of the disorder. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for a right knee disorder is reopened. C. Low Back and Bilateral Ankle Disorders The Veteran previously claimed entitlement to service connection for a low back and a bilateral ankle disorder in September 2002. In a March 2004 rating decision, the RO denied service connection for a low back disorder as the clinical records did not establish a permanent residual or chronic disability despite in-service treatment for a low back condition. In addition, the RO had reconsidered its August 2003 denial of service connection for a bilateral ankle disorder due to the receipt of new evidence, and again denied the claim as the bilateral ankle disorders were not occurred in or caused by service. The Veteran did not appeal this March 2004 rating decision and it is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claims for service connection for a low back or a bilateral ankle disorder was received prior to the expiration of the appeal period stemming from the March 2004 rating decision. See also Bond, supra; Roebuck, supra; Muehl, supra. Evidence received since the March 2004 rating decision consists of VA treatment records dated through November 2012, a December 2008 opinion from Dr. J. M., a July 2009 VA examination report and the Veteran's lay statements. In this regard, the December 2008 opinion from Dr. J. M. indicated that the Veteran's military activities have likely been the source of attritional changes and degenerative findings that were currently producing low back and lower extremity difficulties. A July 2009 VA examiner opined that the Veteran's lumbar degenerative joint and disc disease and bilateral ankle arthralgias were less than likely caused or aggravated by service as service treatment records were silent for any ankle conditions and there was no post-service treatment for a spine condition until a 1985 fall at work. The Veteran has also submitted statements describing symptoms through the present time. The Board notes that the Veteran is capable of reporting observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno, supra Presuming the credibility of the Veteran's statements pursuant to Justus and in light of the newly submitted opinion from Dr. J. M. that addresses a potential nexus between the Veteran's lumbar spine and ankle disorders and service, the Board finds that the evidence received since the March 2004 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claims of service connection. See 38 C.F.R. § 3.156(a). In this regard, the Veteran's claims for a lumbar spine and bilateral ankle disorders were previously denied as there was no nexus between a current disability and service. The RO had determined that a VA examination to address the etiology of such disorders was necessary to decide the claims. See Shade, supra. Moreover, while the July 2009 VA examiner offered a negative opinion, such addresses the etiology of the Veteran's lumbar spine and bilateral ankle disorders and, as such, offers a more complete view of the disorders. Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claims of entitlement to service connection for a lumbar spine and bilateral ankle disorders are reopened. ORDER Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. New and material evidence having been received, the claim for service connection for a right knee disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a low back disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a right ankle disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim for service connection for a left ankle disorder is reopened; the appeal is granted to this extent only. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the claims remaining on appeal can be properly adjudicated. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For below noted reasons, the Board finds that a VA examination is necessary in order to determine the nature and etiology of the Veteran's claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders. The Veteran contends that he suffers from right knee, lumbar spine, bilateral ankle and bilateral hip disorders as a result of service or his service-connected cervical spine disorder. Specifically, he contends that his disabilities were caused or aggravated by the impaired locomotion that had resulted from his service-connected cervical spine disorder. In addition, the Veteran's representative has argued the claimed disabilities are actually rheumatoid arthritis, which had been found during the Veteran's service. A July 2009 VA examination report provided opinions as to direct service connection and noted that the Veteran had no alteration in gait; the Veteran contends that he does have a limp and that this opinion was therefore inaccurate. In addition, this July 2009 opinion did not address the contention that the Veteran suffers from rheumatoid arthritis that had manifested during service. On remand, the Veteran should therefore be afforded a new VA examination to address all of his contentions. Given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the claims file. In addition, in a December 2010 substantive appeal, the Veteran indicated that a November 2010 visit with Dr. "G" at the Ft. Meade VA Medical Center (VAMC) would be relevant to his case; such records are not contained in the claims file or in the Virtual VA processing system. On remand, such records should be obtained. As a final point, as detailed in the Introduction, additional VA treatment records were added to the Veteran's Virtual VA claims file after the issuance of the March 2012 SSOC. Such records reflect VA treatment for the Veteran's disabilities, as well as the February 2013 VA examination report, which are pertinent to the remaining claims on appeal. As such, the RO's adjudication of the claims must include consideration of all pertinent evidence added to the claims file since the March 2012 SSOC. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran's updated VA treatment records documenting treatment for his claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders should be obtained. Such records dated through November 2012 from the Black Hills VAMC are located in the Veteran's claims file. In addition, any treatment records from a November 2010 visit with Dr. Gebee at the Ft. Meade VAMC, as identified by the Veteran in a December 2010 substantive appeal, should be associated with the claims file. Any response received in association with this request should be memorialized in the Veteran's claims file. All efforts to obtain these records and any outstanding private records not already associated with the claims file should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. Following the completion of the above development and the receipt of any additional records, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed right knee, lumbar spine, bilateral ankle and bilateral hip disorders found to be present. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner is asked to furnish an opinion with respect to the following questions: (a) Based on the evidence of record, can it be determined with a reasonable degree of medical certainty, that the Veteran has developed a disorder of the right knee, lumbar spine, bilateral ankle and/or bilateral hip? If so, please specify the diagnosis. The examiner should identify all such disorders that have been present at any time since December 2008. (b) Is it at least as likely as not (50 percent or greater probability) that each such diagnosed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorder had its onset during the Veteran's period of active duty service; or, was any such disorder caused by any incident or event that occurred during his period of service, to include complaints of back pain in July 1964? The examiner should also comment on the Veteran's contention that his current disabilities were related to the finding of early rheumatoid arthritis in June 1963. In addition, the examiner should comment on the impact, if any, of the Veteran's July 1985 fall from a vehicle. (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorders had been aggravated beyond the normal progress of the disorder by his service-connected cervical spine disorder? If so, the examiner should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner should also comment on the Veteran's contention that his service-connected cervical spine disorder impaired his locomotion and resulted in his claimed right knee, lumbar spine, bilateral ankle and/or bilateral hip disorders. In answering the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rating should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 3. If any benefits sought on appeal remains denied, the Veteran and his representative must be furnished with an appropriate supplemental statement of the case includes clear reasons and bases for all determinations, reflects review of all pertinent evidence of record (including VA medical records in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs