Citation Nr: 1337325 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-39 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for left testicle pain. 4. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder. 5. Entitlement to service connection for a bilateral foot disorder. 6. Entitlement to service connection for a bilateral ankle disorder. 7. Entitlement to service connection for a left leg disorder. 8. Entitlement to service connection for a right leg disorder. 9. Entitlement to service connection for a bilateral knee disorder. 10. Entitlement to service connection for a right hip disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant served in the U.S. Army National Guard from May 1967 to May 1973 and had active duty for training (ACDUTRA) including from July 1967 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The appellant failed to report, without good cause, for a scheduled Board hearing in June 2008 and his request for a hearing is consideration as having been withdrawn. 38 C.F.R. § 20.702 (2012). The Board remanded the case for additional development in November 2011. Although the RO developed the issue on appeal of entitlement service connection for a bilateral leg disorder, the Board finds the matter is more appropriately addressed as separate right and left leg disorder issues. The Board also notes that the appellant's Virtual VA record indicates Social Security Administration (SSA) records were added in December 2011, but that these records were not identified as having been considered in an October 2012 supplemental statement of the case. As the SSA evidence added to the Virtual VA record includes, in essence, duplicate evidence as to the issues addressed in the present decision, the Board finds it is not pertinent to these claims and that the appellant is not prejudiced by an adjudication of these issues. The issue of entitlement to service connection for a right leg disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. FINDINGS OF FACT 1. A bilateral hearing loss disability for VA compensation purposes was not manifest during active service or within the first post-service year and is not shown to have developed as a result of an established event, injury, or disease during active service. 2. Tinnitus was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 3. Left testicle pain was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 4. An acquired psychiatric disorder, to include major depressive disorder, was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 5. A bilateral foot disorder was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 6. A bilateral ankle disorder was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 7. A left leg disorder was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 8. A bilateral knee disorder was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. 9. A right hip disability was not manifest during service and is not shown to have developed as a result of an established event, injury, or disease during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Left testicle pain was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 4. An acquired psychiatric disorder, to include major depressive disorder, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 5. A bilateral foot disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 6. A bilateral ankle disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 7. A left leg disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 8. A bilateral knee disorder was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 9. A right hip disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The appellant was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in January 2007 and September 2012. He was provided specific notice as to his personal trauma claim in November 2011. The notice requirements pertinent to the issues addressed in this decision have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service treatment records, service department reports, National Guard records and reports, VA examination reports, private treatment records, SSA records, lay statements from L.B. and A.H. received in April 2007, and the appellant's statements in support of his claims. Although the appellant has reported that he received hospital treatment associated with an assault during basic training at Fort Lewis, Washington, a December 2011 service department report found no records upon a specific search. The appellant was notified by correspondence dated in February 2012. The Board also notes that in correspondence received by the RO in December 2006 the appellant reported having been treated for injuries to the legs and feet during training in Minnesota. The appellant was requested to provide additional information as to his claims, including the dates of medical treatment during service, by correspondence dated in January 2007, but a review of his subsequent statements does not demonstrate that he has provided enough information to identify and locate any existing Federal records as to this matter. A September 2012 VA memorandum found efforts to obtain hospital records had been exhausted. The Board finds that further attempts to obtain additional evidence would be futile. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. The medical opinions obtained in this case as to hearing loss and tinnitus are adequate as they are predicated on a substantial review of the record and medical findings and consider the appellant's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to these issues has been met. 38 C.F.R. § 3.159(c)(4) (2012). Although a medical opinion addressing the appellant's other claims has not been obtained, the Board finds there is no credible evidence of a specific event, disease, or injury occurred during active service as to these matters and an additional examination is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a VA examination is not required when there is no credible evidence establishing an event, injury, or disease in service). The statements provided by the appellant and L.B., to the extent that they assert the appellant was assaulted and incurred injuries to the left leg, feet, and left testicle during service in 1967 or 1968, are found to be not credible due the appellant's interests in the outcome of the claims, the remoteness of the statements from the date of the claimed events, and inconsistency with the treatment findings on August 26, 1967, the appellant's report of medical history in October 1967, and the examination findings in October 1967 and June 1971. Similarly, in the absence of evidence of a specific event or injury in service associated with shooting pains to the legs and feet the medical statement received by the RO in March 2007 is also found to be not credible as to the issue of etiology. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a "[Doctors'] diagnoses can be no better than the facts alleged by appellant." Swann v. Brown, 5 Vet. App. 229, 233 (1993). The available medical evidence is sufficient for adequate determinations of the issues decided herein. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2012); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). The Court has held that regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a claimant seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a claimant concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2012). Once the requirements of 38 C.F.R. § 3.385 (2012) have been met and a present hearing "disability" under applicable VA laws and regulations is found, a determination must be made as to whether the current hearing disorder is related to service. In particular, the Court has held that 38 C.F.R. § 3.385 operates to establish when a measured hearing loss is, or is not, a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met. Hensley v. Brown, 5 Vet. App. 155 (1993) (citing CURRENT MEDICAL DIAGNOSIS & TREATMENT 110-11 (Stephen A. Schroeder et. al. eds., 1988). Even if a claimant does not have a hearing loss disability for VA compensation purposes recorded during service, service connection may still be established if post-service evidence satisfies the criteria of 38 C.F.R. § 3.385 and the evidence links the present hearing loss to active military service. Id. at 158. The threshold for normal hearing is 0 to 20 decibels. Service treatment records dated prior to November 1, 1967, are presumed to use the American Standards Association (ASA) standard, rather than the current International Standards Organization - American National Standards Institute (ISO-ANSI) standard. Conversion to ISO-ANSI units is accomplished by adding 15 decibels to the ASA units at 500 Hertz, 10 decibels to the ASA units at 1000 Hertz, 2000 Hertz, and 3000 Hertz, and 5 decibels to the ASA units at 4000 Hertz. For posttraumatic stress disorder (PTSD) claims VA law provides that service connection "requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. . . ." 38 C.F.R. § 3.304(f) (2012). Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as the governing criteria for diagnosing PTSD. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). Service treatment records are negative for complaint or treatment for hearing loss, tinnitus, left testicle pain, an acquired psychiatric disorder, a bilateral foot disorder, a bilateral ankle disorder, a left leg disorder, a bilateral knee disorder, or a right hip disability. In an October 1967 report of medical history the appellant denied having or having ever had hearing loss, arthritis, lameness, trick or locked knee, foot trouble, depression or excessive worry, or nervous trouble of any sort. He denied having had any other injuries or illnesses and reported that over the past five years he identified treatment only for minor cold and chills. Examination reports dated in July 1967, October 1967, and June 1971 revealed normal ears, genitourinary, feet, lower extremities, and psychiatric clinical evaluations. Upon enlistment examination in May 1967 the appellant's hearing acuity was 15/15, bilaterally, on whispered and spoken voice testing. On examination in July 1967 an audiological evaluation (presumed to use the ASA standard and converted to the ISO-ANSI standard) revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 --- 15 LEFT 25 10 15 --- 20 An October 1967 separation examination report noted audiological evaluation (presumed to use the ASA standard and converted to the ISO-ANSI standard) which revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 --- 15 LEFT 20 10 25 --- 20 Private treatment records dated in August 2006 noted the appellant complained of foot and ankle pain. It was noted he reported a gradual onset over four to five weeks. In statements in support of his claims received in December 2006 the appellant asserted that he sustained injuries to the legs and feet during basic training at Fort Lewis, Washington, when he was beaten with combat sticks and during training in Minnesota when a stove fell off a truck and landed on his legs and feet. He stated that he had experienced ringing in the ears after firing mortars and that he presently had ringing sounds in his ear and had difficulty hearing conversation. In subsequent statements he asserted that his treatment for a pulled muscle in service was associated with an assault during training. On VA authorized audiological evaluation in March 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 55 60 LEFT 10 10 30 55 55 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 percent in the left ear. The examiner reviewed the claims file and found the available service treatment records revealed no change in hearing acuity during service. It was noted that by history the appellant's hearing loss was first noticed many years after service. The examiner found that his hearing loss and tinnitus were not related to military service. A private medical statement received by VA in March 2007 noted it was possible the shooting pains the appellant had in the legs and feet could be related/connected with his military service. No additional information or comments as to this matter were provided. In an April 2007 statement L.B. reported that when the appellant came home from service in 1967 or 1968 he complained about his legs and feet and about having been beaten up. He had also stated that he had been kicked between the legs many times. A.H. reported that in the fall of 1967 the appellant had complained of leg pain from an injury, but did not identify which leg. SSA records include a January 2008 report providing diagnosis of adjustment disorder, psychotic disorder, and alcohol dependence without opinion as to etiology. It was noted, however, that the appellant reported depression since childhood and that he had been beaten up in school. Based upon the evidence of record, the Board finds that a bilateral hearing loss disability for VA compensation purposes and tinnitus were not manifest during active service and that hearing loss and tinnitus were not shown to have developed as a result of an established event, injury, or disease during active service. The appellant's statements as to noise exposure in service are consistent with the circumstance of his service; however, the March 2007 VA medical opinion in this case is persuasive and based upon adequate rationale. The opinion is shown to have been based upon examination findings, a thorough review of the evidence of record, and adequate consideration of the appellant's statements. The Board further finds that left testicle pain, an acquired psychiatric disorder, a bilateral foot disorder, a bilateral ankle disorder, a left leg disorder, a bilateral knee disorder, and a right hip disability were not manifest during service and are not shown to have developed as a result of an established event, injury, or disease during service. There is no credible evidence of any event or injury during service related to these claims and no credible evidence of testicle, psychiatric, foot, ankle, knee, left leg, or right hip disorders manifest until many years after service. The statements as to these matters provided by appellant and L.B. are found to be not credible due the appellant's interests in the outcome of the claims, the remoteness of the statements from the date of the claimed events, and inconsistency with the treatment findings on August 26, 1967, the appellant's report of medical history in October 1967, and the examination findings in October 1967 and June 1971. The August 1967 inservice treatment record reflects only a pulled muscle to the right calf. October 1967 examination and history reports prepared in connection with the end of the ACDUTRA period are entirely negative for pertinent disability, as is the June 1971 periodic examination report, prepared in connection with National Guard retention. The medical statement received by the RO in March 2007 is also found to be not credible as to the issue of etiology or nexus to service because it was apparently provided based upon the appellant's report of injuries in service that the Board finds to be not credible. In determining whether evidence submitted by a claimant is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case). The Court has held that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Board further finds that the appellant is competent to provide evidence as to observations and some medical matters, but that his statements in this case are, at most, conclusory assertions of a nexus between unestablished events in service and disorders manifest after service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, his claims for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the appellant's claims. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for left testicle pain is denied. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. Entitlement to service connection for a bilateral foot disorder is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for a left leg disorder is denied. Entitlement to service connection for a bilateral knee disorder is denied. Entitlement to service connection for a right hip disability is denied. REMAND VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that the veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4). The types of evidence that indicate that a current disability may be associated with military service include credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the appellant contends that he has a right leg disorder as a result of service. Service treatment records dated in August 1967 noted he complained of a pulled muscle in his right calf. In light of the evidence of record, the Board finds further development is required as to this issue for an adequate determination. Accordingly, the case is REMANDED for the following action: 1. Request that the appellant provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to a right leg disorder. After the appellant has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All efforts to procure records should be documented in the file. If any records identified by the appellant cannot be obtained he should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) explain that he is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the appellant for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a present right leg disorder was incurred as a result of service. Opinions should be provided based on the results of examination, a review of the medical evidence of record, to include service treatment records, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be readjudicated with consideration of all evidence of record. If the benefit sought remains denied, the appellant and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs