Citation Nr: 1333354	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  10-07 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a bilateral hearing loss disability

2.  Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus.

3.  Entitlement to service connection for a spine disability, claimed as arthritis. 

4.  Entitlement to service connection for a bilateral lower extremity disability, claimed as arthritis. 


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States





WITNESSES AT HEARING ON APPEAL

Appellant and Wife


ATTORNEY FOR THE BOARD

McBrine, M., Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from September 1965 to January 1969. 

This case comes before the Board of Veterans' Appeals  (the Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims of entitlement to service connection currently on appeal.  

These appeals were remanded for further development in June 2012, and now return again before the Board.

A videoconference hearing was held before the undersigned Veterans Law Judge in April 2012.


FINDINGS OF FACT

1.  The Veteran does not have a level of hearing loss sufficient to constitute a disability for VA purposes.

2.  The preponderance of the evidence is against a finding that the Veteran's currently diagnosed hypertension is etiologically related to a disease, injury, or event in service.


CONCLUSIONS OF LAW

1.  Hearing loss for VA disability purposes was not incurred in or aggravated by service, nor may it be presumed to be so incurred.  38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2013).

2.  Hypertension was not incurred in or aggravated by service, nor may it be presumed to be so incurred.  38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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


Stegall Considerations

As noted above, the Board previously remanded this claim in June 2012 for VA records, specifically for service records, VA records, and examinations with opinion to adequately address the etiology of the disabilities on appeal.  A thorough search was made for the Veteran's identified service treatment records that are not already on file, and they are not available.  The VA records were associated with the Veteran's virtual claims file, and the Veteran was provided with multiple VA examinations and his claim was readjudicated in a May 2013 SSOC.  Thus, there is compliance with the Board's remand instructions, as to those issues being finally adjudicated in this decision.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in April 2007, November 2007, January 2008, March 2008, October 2009, July 2011, July 2012, November 2012, and April 2013, as well as a Board remand dated June 2012, satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013).  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

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

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2013).  In this case, the Board notes that the Veteran was provided with VA examinations in July 2012.  These examinations were thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims discussed herein.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection Law

The Veteran claims that he incurred hearing loss as a result of exposure to loud noises in service, and has hypertension secondary to his service connected diabetes.  For the below reasons, service connection is denied these claims.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

If certain diseases, such as hypertension and sensorineural hearing loss (as a disease of the central nervous system), become manifest to a degree of 10 percent within one year of separation from active service, then they would be presumed to have been incurred during active service, even though there is no evidence of such disease during 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.  The Board notes that there is no evidence of record showing any of these disabilities manifesting to such a degree with one year of service, therefore, service connection on a presumptive basis is not warranted.

An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology.  38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz  is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 26 decibels or greater or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 C.F.R. § 3.385.

The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b).  Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

The Board must determine the value of all evidence submitted, including lay and medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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 professional. 

See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See  Jandreau v. Nicholson, supra (concerning a dislocated shoulder).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

Facts and Analysis

Considering all evidence of record, the Board finds that service connection is not warranted for hearing loss or hypertension.  Reviewing the relevant evidence of record, service treatment records show no complaints related to, or treatment for, hypertension.  

The Veteran's September 1965 enlistment examination showed pure tone thresholds, in decibels, were as follows (NOTE: prior to November 1967, audiometric results were reported in standards set forth by the American Standards Association (ASA)).  Since November 1, 1967, those standards have been set by the International Standards Organization (ISO)-American National Standards Institute (ANSI).  In order to facilitate data comparison, the older ASA standards (which are expressed outside parentheses on the left) have been converted to ISO-ANSI standards (which are expressed by the figures in parentheses on the right)):




HERTZ



500
1000
2000
3000
4000
RIGHT
5(20)
-5(5)
-5(5)
0(10)
0(5)
LEFT
5(20)
0(10)
-5(5)
10(20)
15(20)

It appears the Veteran's blood pressure reading at that time was 130/79.

An initial flying examination dated December 1967 showed pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
15
15
15
20
20

Blood pressure at this time was 130/60.

He was seen in service with a possible blocked Eustachian tube from flying, or early otitis media, in September 1967.  He was eventually treated for an ear infection, having a tube placed in his left hear in October 1967, and instructed to continue using a Valsalva maneuver to clear his ears, apparently due to his duties flying.

A January 1969 separation examination noted that the Veteran's ear drums and canals appeared normal on examination.  Pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
50
45
40
55
65
LEFT
10
5
5
5
5

The Veteran was specifically noted to have hearing loss in the right ear.  There were no findings pertaining to the Veteran's right knee, or lower extremities in general, at that time.  The Veteran's blood pressure reading at that time was 130/60.

Private treatment records dated starting in 2003 indicated that the Veteran was being treated for hypertension that was under fair control.

A May 2007 note indicated that the Veteran was seen for treatment of uncontrolled hypertension.  Treatment records show that the Veteran has been seen periodically since 2007 for treatment and maintenance of his hypertension.

The Veteran received a VA audiological examination in March 2008.  At that time, the Veteran reported having trouble hearing the TV.  On testing, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
20
25
35
LEFT
15
15
10
15
30

Speech audiometry revealed speech recognition ability of 94 percent in both ears.

The Veteran was diagnosed with normal hearing acuity from 250 to 3000 Hz, sloping to a moderate sensorineural hearing loss on the right side, and sloping to a moderately severe sensorineural hearing loss on the left.  The examiner noted that the Veteran's service records showed a normal hearing acuity, and today's results were noted to reveal significantly better thresholds in the right ear than the prior results of his separation examination.  The examiner noted that the Veteran's test results did not reveal a ratable hearing loss for VA purposes in either ear.

An October 2008 private treatment record diagnosed the Veteran with chronic otitis.

A cardiology follow up dated June 2010 noted that the Veteran had hypertension by history, but at that time appeared to have some degree of postural hypotension.  The Veteran was prescribed medication for this condition.  A June 2011 follow up note indicated that the Veteran appear to have fairly well controlled hypertension, and occasional episodes of hypotension at home which were symptomatic.

The Veteran received a VA examination pertaining to hypertension in May 2011.  At that time, the examiner indicated that she did not feel that the Veteran's hypertension was related to his service connected diabetes.  In support of this opinion, the examiner noted that the Veteran had essential hypertension at the same time as his diabetes diagnosis. 

The Veteran received a videoconference hearing before the undersigned Veterans Law Judge in April 2012.  At that time, the Veteran discussed his noise exposure in service.  He also stated that he was first diagnosed with hypertension in 2006, and is currently on medication to control this.

The Veteran received a VA hearing loss examination in July 2012.  At that time,  pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
20
20
25
30
LEFT
20
20
15
25
35

Speech audiometry revealed speech recognition ability of 94 percent in each ear.  The examiner found that testing revealed a non disabling hearing loss bilaterally.  The examiner specifically indicated that, based on this examination, the Veteran did not have hearing loss sufficient to be considered a disability for VA purposes.  An August 2012 addendum to this report after the Veteran's claim file was reviewed showed no change in the examiner's diagnosis.

The Veteran received a VA examination for hypertension in July 2012.  At that time, the Veteran was diagnosed with hypertension.  The examiner indicated that, in his professional medical opinion, it was less likely as not that the Veteran's hypertension was due to or the result of his service connected diabetes.  In support of this opinion, the examiner stated that, while medical literature supports the relationship of hypertension secondary to diabetes due to specific complications of diabetes, specifically diabetic nephropathy or peripheral arteriosclerosis, the Veteran does not demonstrate signs of either of those complications.  Therefore, the examiner felt that the Veteran's hypertension was not related to his diabetes, but was more likely due to age related changes.  The examiner also stated that there was no indication in the medical records or reports that the Veteran's hypertension was aggravated by his diabetes.

Taking into account all relevant evidence the Board finds that entitlement to service connection for a bilateral hearing loss disability is denied.  The Board does not dispute the fact that the Veteran was exposed to noise in service, and in fact, the Veteran already is service connected for tinnitus based in part on this exposure.  However, the Veteran's current level of hearing loss is simply not sufficient to be considered a disability for VA purposes, under 38 C.F.R. § 3.385.  

The Veteran received two VA examinations for hearing loss during the course of this appeal, in March 2008 and July 2012, however, neither of those examinations found that the Veteran's auditory threshold in any of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz was 40 decibels or greater; or that the auditory threshold for at least three of the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz was 26 decibels or greater or that speech recognition scores using the Maryland CNC Test were less than 94 percent.  Nor has the Veteran submitted any private treatment records showing such findings.

The Board is not unsympathetic to the Veteran's claim, and recognizes that pure tone thresholds obtained for the right ear at separation in 1969 do meet the criteria for a current disability.  However, to grant service connection, the evidence of record must show a current disability present at some point during the appeal period.  See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007); Rabideau v. Derwinski, 2 Vet. App. 141, 143  (1992).  Here, the results of audiological evaluations conducted during the period of this appeal consistently show that the Veteran's pure tone thresholds and speech discrimination scores do not satisfy the criteria for a current disability under 38 C.F.R. § 3.385.  Consequently, the Board cannot grant service connection for this disability when VA regulations state that there is no current disability.

Taking into account all relevant evidence, the Board further finds that entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus, is denied.  Initially, the Board points out that the Veteran does not contend, nor does the evidence of record show, a diagnosis of hypertension in service, or until approximately 2003, thirty four years after his separation from service.  The Veteran contends that his currently diagnosed hypertension is related to service either via exposure to herbicides, or as secondary to his service-connected diabetes mellitus, type II.  Because he set foot in Vietnam, he is presumed to have been exposed to herbicides.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). Certain diseases are presumed service connected when manifested in an herbicide exposed Veteran.  38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e).  However, hypertension is not a listed condition.  Nor is hypertension a disease within the meaning of "ischemic heart disease" as it is not a disease of the heart.  VA Training Letter 10-04, Training Guide, p. 14.  The newly added disabilities, effective August 2010, do not include the vascular system impairments such as hypertension.  Hence the herbicide presumption is not applicable.  However, a Veteran may still establish service connection through an evidentiary showing that a relationship between the exposure and current diagnosis is at least as likely as not.  38 C.F.R. § 3.303(d)  & Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

Similarly, there is no evidence other than the Veteran's own non-competent opinion relating his hypertension to his service-connected diabetes mellitus, type II.  In this regard, the Board particularly notes a May 2011 VA examination, in which the examiner indicated that she did not feel that the Veteran's hypertension was related to his service connected diabetes because the Veteran had essential hypertension at the same time as his diabetes diagnosis.  A July 2012 VA examiner indicated that it was less likely as not that the Veteran's hypertension was due to or the result of his service connected diabetes, but was more likely due to age related changes, and that there was no evidence that the Veteran's hypertension was aggravated by his diabetes.  

The sole evidence of a relationship between hypertension and herbicide exposure or diabetes, is the opinion of the Veteran.  As a layperson, he is not competent to render such an opinion; it requires bringing to bear specialized medical knowledge and training beyond mere observation through the five senses.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).   As such, the Board finds that the preponderance of the medical evidence of record is against a grant of service connection for hypertension.

In summary, considering the medical evidence of record, the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for hearing loss or hypertension.  As the preponderance of the evidence is against these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied.  38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49.


ORDER

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

Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus, is denied. 


REMAND

The Veteran is also seeking service connection for disabilities of the spine and bilateral lower extremities, which he has characterized as arthritis.   He has repeatedly asserted that he injured his back and right knee in service when he was hit by a vehicle while directing traffic.  Although most of his statements and testimony regarding his lower extremity claim have been directed towards his right knee injury, the Veteran did indicate during his personal hearing before the undersigned that he also experienced some stiffness in his left knee after he was struck by the vehicle.

The Board notes that these claims were remanded in July 2012 for further development, specifically for the examiner to render an opinion as to whether there is a 50 percent probability or greater that any current spine disability or bilateral lower extremity disability was etiologically related to or had its onset in service, taking into consideration any additional evidenced that might be obtained as a result of this remand and the Veteran's lay statements.  In rendering the requested opinion, the examiner was instructed that he must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of the disability reported by the Veteran, as well his statements with regard to the continuity of symptoms since service discharge.

The Veteran received a VA examination in July 2012.  As to his lower extremity claim, he received a diagnosis of chondromalacia of the patella in the right knee.  The examiner noted the Veteran's reported history of injuring his right knee in service when being hit by a vehicle while directing traffic.  It was noted that the injury required hospitalization and required the Veteran to be placed on light duty afterwards.  The Veteran reported that knee troubles persisted through service, and afterwards, during his work as a mechanic, through to the present.  He currently has problems with the right knee aching, worse in cold weather, with flare ups with twisting motions.  On examination, the Veteran was found to have less movement than normal, as well as pain on movement, of the right knee.  X-rays at that time showed mild degenerative joint disease of the right knee.  The examiner indicated that, in his opinion, it was less likely as not that the Veteran's current right knee condition was related to military service.  In support of this decision, the examiner noted that there were no reports of a right knee condition in service or noted on separation examination.  Additionally, even when considering a right knee injury in service, the examiner concluded that the current arthritis condition is not of a degree to suggest an altered disease process from a claimed in service injury.  The examiner opined that the Veteran's current right knee condition was most likely related to some other etiology outside of service, such as occupational history.

The Board notes that there was no discussion in the examination report as to the Veteran's left lower extremity, including his left knee.  It is unclear if this was because the Veteran failed to mention having sustained a left leg injury or having any problems with his left lower extremity, or if it was because the examiner simply found no evidence of any left lower extremity disability.  In any event, the Board remand directed that the VA examination be conducted to determine that nature and etiology of any bilateral lower extremity disability.  Consequently, if no left lower extremity disability is found to be present, or if such disability exists but is believed to be unrelated to service, this must be affirmatively indicated in the VA examination report.  Under these circumstances, the Board finds that this claim must be remanded for another VA examination to clarify whether there is any disability in either lower extremity related to military service.

As to the Veteran's claim of entitlement to service connection for a spine disability, while, in the initial history taken during the examination, the examiner noted the Veteran's reported history of a back injury in service, he did not discuss this evidence in rendering his opinion, as he had done for the Veteran's clamed right knee condition.  

A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the Board finds that this case is not ready for appellate review and must be remanded for compliance with the Remand instructions.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current spine disability and bilateral lower extremity disability, both claimed as arthritis.  The claims folder must be provided to and reviewed by the examiner.  All indicated tests and studies should be performed, and all findings should be set forth in detail. 

The examiner should identify all disabilities found to be present in the spine or the left or right lower extremities (except for the peripheral neuropathy for which service connection has already been established).  If no disability is found, this should be affirmatively noted in the examination report.

The examiner should elicit a history directly from the Veteran as to the nature and extent of injury received to the spine as well as both the left and right lower extremities in service.

As to each disorder of the spine and/or lower extremity found, the examiner must render an opinion as to whether there is a 50 percent probability or greater that any current spine disability and/or bilateral lower extremity disability is etiologically related to or had its onset in service, taking into consideration the Veteran's lay statements. 

In rendering the requested opinion, the examiner must specifically acknowledge and discuss the competent and credible lay evidence regarding the onset of the disability reported by the Veteran, as well his statements with regard to the continuity of symptoms since service discharge.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that a examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). 

All findings must be reported in detail and all indicated testing must be accomplished. 

If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  See Jones v. Shinseki, 23 Vet. App. 382 (2011).

2. Thereafter, readjudicate the Veteran's claims for service connection.  If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs