Citation Nr: 1418015 Decision Date: 04/22/14 Archive Date: 05/02/14 DOCKET NO. 05-29 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected disabilities of the right lower extremity, and if so, whether service connection is warranted. 2. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for the residuals of a head injury, and if so, whether service connection is warranted. 3. Entitlement to service connection for a left hip disability, to include as secondary to the service-connected disabilities of the right lower extremity. 4. Entitlement to service connection for a right ankle disability, to include as secondary to the service-connected disabilities of the right lower extremity. 5. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to the service-connected disabilities of the right lower extremity. 6. Entitlement to a disability rating in excess of 20 percent for the residuals of a fracture of the right tibia and fibula. 7. Entitlement to an initial disability rating in excess of 20 percent for a right knee disability. 8. Entitlement to an initial disability rating in excess of 20 percent for peripheral vascular disease (PVD) of the right lower extremity. 9. Entitlement to an initial disability rating in excess of 10 percent for a right hip disability. 10. Entitlement to an initial disability rating in excess of 10 percent for an impairment of the right peroneal sensory nerve. 11. Entitlement to an effective date prior to February 13, 2006, for the grant of service connection for a right knee disability. 12. Entitlement to a total disability rating based on individual unemployability (TDIU). 13. Entitlement to a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to August 1982 and from March 1983 to March 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decisions issued in October 2004, February 2010, January 2011, January 2012, May 2012, and July 2013, by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri. In pertinent part, the October 2004 rating decision denied an increased rating for the residuals of a fracture of the right tibia and fibula (a January 2011 rating decision subsequently awarded the current 20 percent evaluation); the February 2010 rating decision denied the claim to reopen service connection for a lumbar spine disability and entitlement to a temporary total rating for convalescence following surgery performed in July 2009; the January 2011 rating decision granted service connection for a right knee disability and assigned an initial 20 percent rating; the January 2012 rating decision granted initial ratings of 20 percent for PVD of the right lower extremity, 10 percent for a right hip disability, and 10 percent for an impairment of the right peroneal sensory nerve; the May 2012 rating decision denied a claim to reopen service connection for the residuals of a head injury (adjudicated as an initial service connection claim) and entitlement to a TDIU; and the July 2013 rating decision denied service connection for a right ankle disability and an acquired psychiatric disorder. In November 2007, the Board denied service connection for a lumbar spine disability and a disability manifested by memory loss, and remanded the increased rating claim regarding the residuals of the tibia and fibula fracture for development. Upon completion of this development and the return of the case to the Board in August 2009, the Board determined that further development with regard to the increased rating claim was required, and again remanded the claim. In August 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. With regard to the claim to reopen service connection for the residuals of a head injury, the Board denied service connection for a disability manifested by memory loss in November 2007, and the Veteran's current claim for the residuals of a head injury is merely a rephrasing of his earlier claim. Accordingly, the Board has rephrased the current claim as a claim to reopen. With regard to the claim for an earlier effective date for the grant of service connection for a right knee disability, the Board assumes jurisdiction of this claim pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The claim to reopen service connection for the residuals of a head injury; the reopened claim of service connection for a lumbar spine disability; and the initial service connection claims for a left hip disability, a right ankle disability, and an acquired psychiatric disorder; the increased rating claims for the residuals of a fracture of the right tibia and fibula, a right knee disability, a right hip disability, an impairment of the right peroneal sensory nerve, and PVD of the right lower extremity; the claim of entitlement to a TDIU; and the claim seeking an earlier effective date for the grant of service connection for a right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. During the August 2013 Board hearing, the Veteran withdrew his appeal seeking a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007. 2. The Board denied service connection for a lumbar spine disability in a final decision issued in November 2007. 3. Evidence associated with the record since the issuance of the November 2007 Board decision is both new and material. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007 have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The November 2007 Board decision denying entitlement to service connection for a lumbar spine disability is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2007). 3. New and material evidence has been submitted, and the claim of entitlement to service connection for a lumbar spine disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Service Connection Claim During his August 2013 Board hearing, the Veteran indicated, on the record, that he wished to withdraw his appeal seeking a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007. See 38 C.F.R. § 20.204. Because the Veteran has withdrawn this claim, there is no remaining allegation of error of fact or law with respect to the claim. Therefore, dismissal of the Veteran's appeal seeking a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007 is the appropriate action. See 38 U.S.C.A. § 7105(d). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With regard to the Veteran's claim to reopen service connection for a lumbar spine disability, the Board is granting the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Claim to Reopen The Board denied the Veteran's service connection claim for a lumbar spine disability in a decision issued in November 2007. The Board's decision is final. 38 U.S.C.A. § 7104(b) (West 2002). Nevertheless, a final denial of a service connection claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision-makers. 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). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision-makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. As reflected in the November 2007 Board decision, the Board denied the Veteran's service connection claim for a lumbar spine disability after determining that the medical opinions then of record failed to link the Veteran's lumbar spine disability to service or his service-connected residuals of a fracture of the right tibia and fibula. Newly submitted evidence of record includes a June 2009 VA opinion stating that it is at least as likely as not that the Veteran's in-service back injury may have contributed to his current lower back problems. Additionally, in a medical opinion authored in September 2010, the Veteran's treating VA primary care physician states that the Veteran's altered gait resulting from his service-connected disabilities of his right lower extremity causes chronic back pain. The medical opinions are credible for the purpose of reopening the Veteran's claim. Thus, the medical opinions are both new and material, as they were not of record when the Veteran's service connection claim was initially denied, and as they relate to the reason his claim was initially denied, i.e., they relate the Veteran's current lumbar spine disability to service and his service-connected disabilities of his right lower extremity. See Justus v. Principi, 3 Vet. App. 510, 512 (1992) (holding that evidence is presumed credible for the limited purpose of determining its materiality). Given the submission of new and material evidence, reopening of the claim is warranted. The merits of the reopened claim are addressed in the remand portion of the decision, below. ORDER The appeal of the claim for a temporary total rating for convalescence following surgery of the right lower extremity performed in September 2007 is dismissed. New and material evidence having been presented, the claim of entitlement to service connection for a low back disorder is reopened. REMAND With regard to the claim to reopen service connection for the residuals of a head injury, the Board has rephrased this issue as a claim to reopen because the Veteran is currently claiming the same disability that was addressed in the Board's November 2007 decision, at which time the claim was referred to as a service connection claim for memory loss. The Veteran is seeking service connection for the residuals of an in-service head injury, which he posits has resulted in retrograde amnesia, causing memory loss of remote life events. Specifically, the Veteran reports that when he was struck by a large wooden beam on a flight deck when the beam was dislodged by jet engines, resulting in his current service-connected right leg impairments, he was knocked unconscious by the force of the blow, and his helmet shattered, resulting in a closed head injury. The Board denied the claim after concluding that the evidence then of record failed to reflect any evidence of a diagnosed disability manifested by memory loss. Indeed, although not expressly considered by the Board in 2007 (as the Veteran's Vocational Rehabilitation records had not yet been associated with his claims file), a neuropsychological assessment conducted in April 2007 in conjunction with VA vocational rehabilitation services acknowledged the Veteran's reports of an in-service head injury and a related memory impairment, described as amnesia regarding remote events, but found no clinical evidence of such a memory impairment. Since the issuance of the November 2007 decision, the Veteran continues to assert that he sustained an in-service head injury, resulting in a current memory impairment. The medical evidence associated with the claims file since the issuance of the November 2007 Board decision continues to fail to reflect clinical evidence of any residuals of this head trauma or any objective evidence of a memory impairment. As the current claim to reopen was developed as an initial service connection claim, the Veteran has not been informed of the requirements for reopening his previously denied service connection claim, namely the submission of evidence that relates to the reason his claim was initially denied, i.e. medical evidence of current residuals from his in-service head trauma, to include objective evidence of a memory impairment. Kent v. Nicholson, 20 Vet. App. 1 (2006). Thus, a remand is required to afford the Veteran such notice. With regard to the reopened claim of service connection for a lumbar spine disability, during his August 2013 Board hearing, the Veteran reported that when he injured his back during his employment with the postal service, he merely aggravated his preexisting back injury. The Veteran further indicated that records related to his worker's compensation claim could provide evidence relevant to his claim. In that regard, a November 1994 letter approving worker's compensation benefits for a lumbar strain notes that the lumbar strain aggravated a preexisting lumbar spine disability, unilateral spondylosis. Accordingly, efforts to obtain the records related to this worker's compensation claim should be made. (The Veteran also testified that he received chiropractic treatment for his low back pain soon after service, but stated that he attempted to obtain these records and was informed that they had been destroyed.) Additionally, there are conflicting, and inadequate, medical opinions regarding whether the Veteran's current lumbar spine is related to his service-connected disabilities of his right lower extremity, his claimed theory of entitlement. Specifically, a 2004 VA opinion concludes that the Veteran's low back pain is actually referred hip pain, and unrelated to his right tibia and fibula fracture. An August 2005 private medical opinion speculates that the Veteran's lumbar spine disability could be related to his altered gait resulting from his service-connected right leg disabilities, but also speculates that it could be attributable to his left hip disability, which is of unknown etiology. An October 2005 VA medical opinion concludes that it would be speculative to render an opinion as to whether the Veteran's lumbar spine disability is related to his service-connected right leg disability, and states that the lumbar spine disability could be related to his left hip disability, which is related to the Veteran's pre-service fracture of his left hip in 1972. A September 2010 medical opinion authored by the Veteran's VA treating physician states that the Veteran's altered gait due to his service-connected right leg disabilities causes chronic low back pain (not a low back disability), but the opinion does not include a supporting rationale. Given the inadequacy of these opinions addressing secondary service connection, a new medical opinion must be obtained. In addition to these insufficient medical opinions regarding the potential relationship between the Veteran's lumbar spine disability and his service-connected right leg disabilities, there is no adequate medical opinion of record exploring a theory of direct service connection, although the Veteran reports injuring his back during service. He states that the large lumber beam dislodged by jet engines initially hit his back and buttocks, causing him to fall in such a manner that he sustained his service-connected right leg fracture. Moreover, statements submitted in June 1986 (approximately one year after his discharge from his last period of service in March 1985) by the Veteran's mother and aunt report the Veteran's frequent complaints of lower back pain. A June 2009 VA opinion finds that it is at least as likely as not that the Veteran's in-service back injury may have contributed to his current lower back problems; however, the opinion uses speculative language, and no rationale is provided. In November 2011, a VA examiner opined that the Veteran's current low back disability is at least as likely as not related to service, as the Veteran sustained a back injury when he also injured his right leg, and developed a resulting leg length discrepancy. However, the examiner qualified the opinion by citing several other factors suggesting that the back disability is unrelated to service, including the development of the back disability many years after service, the post-service work-related low back injury, and the Veteran's post-service employment engaging in hard labor. As such, a new medical opinion regarding a theory of direct service connection must also be obtained. With regard to the service connection claim for a left hip disability, the Veteran is currently diagnosed with both left hip arthritis and avascular necrosis. The record reflects conflicting opinions regarding the etiology of the Veteran's left hip disabilities. A 2004 private medical opinion indicates that left hip arthritis is of an unknown etiology. A 2005 VA medical opinion presumes that the left hip avascular necrosis is related to a pre-service (1972) left hip fracture. A July 2009 VA medical opinion indicates that the avascular necrosis is likely due to trauma sustained during the Veteran's flight deck injury, but the examiner only considered the in-service, and not pre-service, hip trauma. The September 2010 VA opinion authored by the Veteran's treating VA physician states that the Veteran's altered gait due to his service-connected right leg disabilities aggravates his left hip avascular necrosis, but provides no related rationale. As such, a probative medical opinion regarding the etiology of the Veteran's left hip disability must be obtained. With regard to the service connection claim for a right ankle disability, the Veteran contends that he has a separate ankle disability, apart from his residuals of his right tibia and fibula fracture. VA examination reports conducting during the pendency of this appeal reflect diagnoses of a right ankle strain and a right ankle calcaneal spur, but do not include any medical opinions specifically addressing their etiology. The examination reports reflect findings that the Veteran's right ankle symptoms or right ankle condition are related to his right tibia and fibula fracture residuals, but do not relate whether those ankle symptoms are manifestations of a separate ankle disability apart from his service-connected right tibia and fibula fracture residuals. The RO denied service connection for a separate right ankle disability because the Veteran's current 20 percent rating for the residuals of his right tibia and fibula fracture contemplates a related ankle impairment. However, this analysis is appropriate for determinations regarding the rating to be assigned for a service-connected disability, but is inapplicable to the threshold inquiry as to whether a disability is service-connected. Accordingly, a VA examination to clarify the nature of the Veteran's ankle impairments, to include whether they constitute disabilities distinct from the service-connected fracture residuals, must be obtained. With regard to the service connection claim for an acquired psychiatric disorder, the Veteran reports current symptoms of depression related to the significant functional impairments resulting from his service-connected disabilities. The Veteran is competent to report this symptomatology, and as there is no evidence to the contrary, his reports are deemed credible. Furthermore, the Veteran was diagnosed with an adjustment disorder with a depressed mood in the aforementioned April 2007 neuropsychiatric evaluation. This evidence is sufficient to trigger VA's duty to obtain a VA examination to determine if the Veteran has a current psychiatric disorder related to service or his service-connected disabilities. With regard to the claims for increased ratings for the residuals of a fracture of the right tibia and fibula, a right knee disability, a right hip disability, an impairment of the right peroneal sensory nerve, and PVD of the right lower extremity, during his August 2013 Board hearing the Veteran reported receiving ongoing VA treatment record for these disabilities. However, no VA treatment records created since December 2011 are of record. As VA is deemed to have constructive possession of these records, and as the records are relevant to the increased rating claims, the records must be obtained. Additionally, as these service-connected disabilities were last assessed by VA examinations performed in 2011 and 2012, new VA examinations should be conducted to determine the current severity of these disabilities. With regard to the Veteran's claim of entitlement to a TDIU, adjudication of this claim should be deferred pending the requested development with regard to the Veteran's increased rating and service connection claims. Additional development is required in this regard as well. Of note, the November 2011 VA medical opinion obtained regarding the effect of the Veteran's service-connected disabilities states that the functional impact of the Veteran's service-connected disabilities does not preclude sedentary employment, but the opinion fails to consider the Veteran's educational level (he has obtained a G.E.D.) and employment history (he has only been employed as a laborer). Moreover, records from the Social Security Administration indicate that the Veteran's ability to perform sedentary work is very limited due to his physical disabilities. Thus, a new medical opinion must be obtained, after the completion of the development set forth above. With regard to the Veteran's claim seeking an earlier effective date for the grant of service connection for a right knee disability, the RO granted service connection for a right knee disability in a rating decision issued in January 2011, and assigned an initial 20 percent disability rating and an effective date of February 13, 2006. In a telephone conversation in December 2011, the written summary of which is included in the claims file, the Veteran stated that he was seeking an earlier effective date for the grant of service connection and the assignment of the initial 20 percent disability rating. As the Veteran filed a timely disagreement with the effective date assigned for the grant of service connection for his right knee disability, the Veteran should be provided with a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice regarding his claim to reopen service connection for the residuals of a head injury. The notice should: * Inform the Veteran that his claim was previously denied by the Board in November 2007; * Inform the Veteran of the definition of new and material evidence; * Inform the Veteran of the reason for the Board's prior denial of his claim, namely the lack of clinical findings of head injury residuals; and * Inform the Veteran that new evidence relating to the reason for the prior denial must be submitted to reopen the claim, namely the submission of evidence that relates to the reason his claim was initially denied, i.e. medical evidence of current residuals from his in-service head trauma, to include objective evidence of a memory impairment. 2. Obtain the Veteran's VA treatment records from December 2011 to the present. 3. With any assistance necessary from the Veteran, obtain the records related to the Veteran's 1994 claim for worker's compensation during his employment with the postal service, which is referenced in the November 1994 letter from the postal service of record. 4. Obtain a VA medical opinion from an appropriate medical professional to address the etiology of the Veteran's lumbar spine disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Salient facts in the claims file include: * The Veteran's credible report that he was struck in the buttocks and back by the large wooden beam dislodged by jet engines while he was serving on flight deck, and that his related fall caused by this blow resulted in his service-connected right tibia and fibula fracture; * In 1986, the Veteran and his aunt relayed the Veteran's reports of experiencing ongoing low back pain; * The Veteran credibly reports the date of onset of his lumbar spine disability (degenerative disc disease) as 1987, and he credibly reports receiving chiropractic treatment since soon after service for his low back pain (the records of which are not available); * In 1994, the Veteran sustained a lower back injury, characterized as a lumbar strain aggravating preexisting unilateral spondylosis; * The Veteran currently has an altered gait and a leg length discrepancy due to his service-connected right leg disabilities. After review of the claims file, the medical professional is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current lumbar spine disability is related to service, and or caused or aggravated by his service-connected disabilities of his right lower extremity. "Aggravation" is defined as a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. Obtain a VA medical opinion from an appropriate medical professional to address the etiology of the Veteran's left hip disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Salient facts in the claims file include: * The Veteran sustained a left hip fracture prior to service in 1972, but no residual impairment was detected on entrance to service; * The Veteran and his mother credibly report that he did not experience a left hip impairment, or evidence a limp, prior to his in-service flight deck injury; * The Veteran's credibly reports that he was struck in the buttocks and back by the large wooden beam dislodged by jet engines while he was serving on a flight deck, and that his related fall caused by this blow resulted in his service-connected right tibia and fibula fracture; * The Veteran is currently diagnosed with left hip arthritis and avascular necrosis, for which he underwent a surgical decompression in 2004; and * The Veteran currently has an altered gait and a leg length discrepancy due to his service-connected right leg disabilities. After review of the claims file, the medical professional is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current left hip disability is related to service, and or caused or aggravated by his service-connected disabilities of his right lower extremity. "Aggravation" is defined as a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for a VA orthopedic examination from an appropriate medical professional to address the etiology of the Veteran's right ankle disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Salient facts in the claims file include: * The Veteran contends that he has a separate ankle disability, distinct from his service-connected residuals of a right tibia and fibula fracture; and * VA examinations conducted in 2012 note diagnoses of a right calcaneal spur and a right ankle strain. After review of the claims file, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current separate ankle disability, apart from the service-connected residuals of his tibia and fibula fracture, that is related to service, and or caused or aggravated by his service-connected disabilities of his right lower extremity. "Aggravation" is defined as a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 7. Schedule the Veteran for a VA mental health examination conducted an appropriate mental health professional to address the etiology of any currently-diagnosed psychiatric disorder. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. Salient facts in the claims file include: * The Veteran contends that he experiences depression due to the significant functional limitations caused by his service-connected disabilities of his right lower extremity. * In an April 2007 VA Vocational Rehabilitation neuropsychiatric evaluation, the Veteran was diagnosed with an adjustment disorder with a depressed mood. After review of the claims file, the VA examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently-diagnosed acquired psychiatric disorder is directly related to service, and or caused or aggravated by his service-connected disabilities of his right lower extremity. "Aggravation" is defined as a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 8. Schedule the Veteran for a VA orthopedic examination to assess the current severity of the service-connected right knee disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After conducting a physical examination of the Veteran's right knee and conducting all indicated radiological and diagnostic testing, the examiner is to: (a) State whether there is x-ray evidence of right knee arthritis, ankylosis, or genu recurvatum; (b) Describe the range of flexion and extension in degrees and whether there is any other functional loss due to pain, weakened movement, excess fatigability, and incoordination, or with repetitive use or flare-ups. If feasible, any additional functional loss should be expressed in terms of loss of flexion or extension. (c) State whether there is evidence of recurrent subluxation or lateral instability, and if so, describe the level of severity (i.e., mild, moderate, moderately severe, or severe). (d) State whether there is evidence of a dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. (e) Describe the right knee surgical scar with attention to rating factors, including the scar measurements and whether the scar is painful on examination, unstable, or affects knee function. 9. Schedule the Veteran for a VA orthopedic examination to assess current severity of his service-connected right hip disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After conducting a physical examination of the Veteran's right hip and conducting all indicated radiological and diagnostic testing, the examiner is to: (a) State whether there is x-ray evidence of right hip arthritis, ankylosis (characterize as favorable, intermediate, or unfavorable), or flail joint. (b) Describe the range of thigh flexion and extension in degrees and whether there is any other functional loss due to pain, weakened movement, excess fatigability, and incoordination, or with repetitive use or flare-ups. If feasible, any additional functional loss should be expressed in terms of loss of flexion or extension. (c) State whether the hip disability causes a thigh impairment resulting in limitation of rotation, causing an inability to toe-out more than 15 percent of the affected leg; whether there is limitation of adduction resulting in an inability to cross legs; or whether there is limitation of abduction, with motion lost beyond 10 degrees. (d) State whether there is evidence of femur malunion or fracture; if malunion is found, state whether the malunion produces a slight, moderate, or marked disability of the hip or knee; if a fracture is found, state whether the fracture results in a false joint or nonunion, with or without loose motion, and whether weight-bearing is preserved with the aid of brace. 10. Schedule the Veteran for a VA orthopedic examination to assess the current severity of the service-connected residuals of the right tibia and fibula fracture. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After conducting a physical examination of the Veteran's right lower extremity and conducting all indicated radiological and diagnostic testing, the examiner is to state whether the impairment of the tibia and fibula results in either nonunion with loose motion, requiring a brace; or malunion, with a slight, moderate, or marked knee or ankle impairment. 11. Schedule the Veteran for a VA vascular examination to assess the current severity of the service-connected PVD of the right lower extremity. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After conducting a physical examination of the Veteran's right lower extremity and conducting all indicated radiological and diagnostic testing, the examiner is to state whether PVD of the right lower extremity results in: (a) claudication on walking more than 100 yards, and either diminished peripheral pulses or an ankle/ brachial index of 0.9 or less; (b) claudication on walking between 25 yards and 100 yards on a level grade at 2 miles per hour and either trophic changes (thin skin, absence of hair, dystrophic nails) or an ankle/brachial index of 0.7 less; (c) claudication on walking less than 25 yards on a level grade at 2 miles per hour and either persistent coldness of the extremity or an ankle/brachial index of 0.5 less; or (d) ischemic limb pain at rest, and either deep ischemic ulcers or an ankle/brachial index of 0.4 less. 12. Schedule the Veteran for a VA neurological examination to assess the current severity of the service-connected impairment of the right peroneal sensory nerve. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. After conducting a physical examination of the Veteran's right lower extremity and conducting all indicated neurological testing, the examiner is to state whether the impairment of the right peroneal sensory nerve results in: (a) mild incomplete paralysis of the peroneal nerve; (b) moderate incomplete paralysis of the peroneal nerve; (c) severe incomplete paralysis of the peroneal nerve; or (d) complete paralysis of the peroneal nerve, with foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, weakened adduction, and anesthesia that covers the entire dorsum of the foot and toes. 13. Obtain a medical opinion from a vocational specialist, if possible, regarding the effect of the Veteran's service-connected disabilities on his employability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, have rendered him unable to secure or follow a substantially gainful occupation since November 2008. In offering this opinion, the examiner must take into consideration the Veteran's level of education, training, and previous work experience. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 14. Provide the Veteran with a statement of the case with regard to the claim seeking an earlier effective date for the grant of service connection for a right knee disability. Should the full benefit sought be denied, notify the Veteran that, in order to perfect an appeal of the claim to the Board, he must timely file a substantive appeal. 15. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his agent an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs