Citation Nr: 1509085	
Decision Date: 03/03/15    Archive Date: 03/17/15

DOCKET NO.  12-14 337A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for tinnitus.  

2. Entitlement to service connection for left ear hearing loss (HL).  

3. Entitlement to service connection for skin disability.  

4. Entitlement to service connection for right foot disability.  

5. Entitlement to service connection for right knee disability, claimed as secondary to service-connected left foot disability.  

6. Entitlement to service connection for left knee disability, claimed as secondary to service-connected left foot disability.  

7. Entitlement to service connection for left shoulder disability.  

8. Entitlement to service connection for lumbar spine disability, claimed as secondary to bilateral knee disability.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from June 1982 to April 1986, and had service in the Tennessee Army National Guard (ANG) from April 1986 to June 1988.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued in August 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied the claims for service connection for tinnitus, HL, right and left knee disabilities, left shoulder disability, and lumbar spine disability.  Also on appeal is a December 2011 rating decision, which, inter alia, denied the claims for service connection for the right foot disability and skin disability.  

The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2014.  A transcript of that hearing is associated with the claims file.  The hearing was adequate as the undersigned VLJ and representative for the Veteran explained the issues and identified possible sources of evidence that may have been overlooked.  38 C.F.R. 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

In evaluating this case, the Board reviewed the virtual VA claims file to ensure a complete assessment of the evidence.  

The matters of entitlement to service connection for right foot disability, right knee disability, left knee disability, left shoulder disability, and lumbar spine disability are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.  


FINDINGS OF FACT

1. According the Veteran the benefit of the doubt, his tinnitus is found to have been related to noise exposure during service.  

2. Left ear HL did not manifest during active military service or within one year of service separation, and is not related to a disease, injury, or event in service.  

3. A skin disability did not manifest during active military service, and is not related to a disease, injury, or event in service.  


CONCLUSIONS OF LAW

1. Tinnitus was incurred in service.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014).  

2. The criteria for service connection for left ear HL have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2014).  

3. The criteria for service connection for a skin disability have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).  

The duty to notify was satisfied by way of December 2009, January 2010, October 2010, and November 2010 letters, sent prior to the July 2010 and December 2011 rating decisions, which informed the Veteran of his duty and the VA's duty for obtaining evidence.  These letters included notice of the type of evidence necessary to establish a disability rating or effective date for the disability under consideration, pursuant to the recent holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006).  

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issues has been obtained.  The Veteran's service treatment records, VA and private treatment records, lay statements, transcript of his hearing testimony, and VA examination reports and medical opinions have been obtained.  

The Board is aware that in September 2010, the Veteran submitted VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA Form 21-4142), and identified treatment records from "Dr. Kellie Mosley-Mendez" that needed to be obtained.  VA is required to seek pertinent records that are adequately identified and for which necessary releases are furnished.  38 U.S.C.A. § 5103A(b).  The RO sent a letter in October 2010 and requested treatment records from this practitioner; however, no response was received.  As VA has substantially complied with the notice and assistance requirements, the Veteran is not prejudiced by a decision on the claims at this time.  

A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'"  Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The Board finds that the March 2010, May 2010, October 2010, and November 2010 VA examination reports are adequate because the examiners discussed the Veteran's medical history, described the claimed disorders in sufficient detail, and supported all conclusions with analysis and, where possible, objective test results.  

The Veteran has been given ample opportunity to present evidence and argument in support of his claims.  The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2014).  

Analysis

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and degree of his recurrent symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See Id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury.  

Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as arthritis, and sensorineural HL.  Tinnitus has also been found to be included on this list.  See Fountain v. McDonald, No. 13-0540 (February 9, 2015).  Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, 708 F.3d 1331, 1336 (Fed. Cir. 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed in §3.309(a).").  If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection.  38 C.F.R. §§ 3.303(b); Walker, 708 F.3d at 1336.  

When a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on a another basis.  See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

Tinnitus

The Veteran claims that he has tinnitus as a result of active service.  Given his military occupational specialty as a Fire Support Specialist (see DD Form 214), noise exposure has been conceded.  

A review of the Veteran's service treatment records discloses no complaints of tinnitus.  The first element of service connection is competent evidence of a current disability.  The evidence of record includes diagnoses of left ear tinnitus.  See, e.g., March 2010 VA audiology examination report.  As such, this element is satisfied.  

The second criterion for service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease.  As noted, exposure to excessive noise in service is conceded as consistent with the circumstances of his service.  The Veteran also testified that he did not wear hearing protection in service and that his tinnitus could only be due to his military noise exposure since he did not have any post-service noise exposure.  

The third criterion for service connection is medical evidence, or in certain circumstances, lay evidence, of a nexus between the current disability and the in-service disease or injury.  

Although the Veteran's available service treatment records are negative for any complaints or diagnoses of tinnitus, the Veteran has indicated that he suffered from a ringing in his ears due to noise exposure during his period of active duty service and continuously since then.  The Board notes that the Veteran is competent to attest to factual matters of which he has first-hand knowledge (e.g., experiencing ringing in his ears).  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  To this extent, the Board finds that the Veteran is competent and credible to report that he has experienced tinnitus since service.  Moreover, there is no reason to doubt his credibility.  

The Board recognizes that the March 2010 VA examination report indicates that tinnitus is less likely than not related to the conceded noise exposure.  Notwithstanding, the Veteran has related a competent history of tinnitus due to and since service and the Board finds no reason to doubt his credibility.  Thus, the evidence is at least in equipoise and the claim is therefore granted.  Gilbert, supra. 





Left Ear HL

In a VA Form 9, Appeal to the Board of Veterans' Appeals (VA Form 9), received in June 2012, the Veteran reported that his left ear hearing loss was related to noise exposure experienced while working in field artillery.  

During the December 2014 hearing, he testified that he observed in service that his hearing began to deteriorate, and he began to feel the decrease in his ability to hear.  

The Board notes that the Veteran has not alleged, nor does the clinical record show, that he experienced VA compensable hearing loss within one year of his separation from service.  Thus, the presumption provided under 38 C.F.R. §§ 3.307, 3.309 are not for application in this case.  

As noted, in-service noise exposure has been conceded.  

The Board also concedes that a March 2010 VA audiology examination report shows the Veteran was diagnosed with VA compensable hearing loss in his left ear.  During the examination he reported experiencing difficulty hearing in general conversations especially when background noise was present.  He denied being in combat; however he reported that he was exposed to military gunfire, grenades, mortars, and right-handed shooter fire.  Notably, he reported that hearing protection plugs were provided to him.  The Veteran also reported a  history of head trauma in the military, although he denied experiencing concussion or skull fracture.  

The examiner noted that the July 1981 enlistment Report of Examination showed pure tone thresholds for the left ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
10
0
0
-
0

Further, a July 1983 reference audiogram showed pure tone thresholds for the left ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
20
15
15
5
5

Finally, a July 1987 reenlistment Report of Examination showed pure tone thresholds in the left ear, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
LEFT
25
15
10
-
10

The examiner opined that the Veteran had hearing loss; however, the current HL was not due to or a result of his in-service acoustic trauma.  The examiner noted that military noise exposure was conceded.  The examiner explained that all in-service hearing tests showed normal hearing in both ears.  The examiner noted that a slight shift in hearing was seen between hearing testing performed at reenlistment in 1987 when compared to results from his initial enlistment exam in 1981.  However, the examiner opined that this minimal shift occurred in the low frequencies which were not typically seen as a result of noise exposure.  The examiner cited medical literature that has shown that noise induced hearing loss will quite often first present in the high frequencies (above 2000 Hz).  The examiner noted that the Institute of Medicine Report on Noise Exposure in the Military concluded that there was no scientific support for delayed onset noise-induced HL that occurred weeks, months, or years after the exposure event.  The examiner concluded that based on these findings and given the Veteran's hearing testing was within normal limits one year after separation from the service his current HL was less likely as not caused by or a result of in-service noise exposure.  

The Board finds the March 2010 VA audiologist's opinion that indicates the Veteran's left ear HL is not related to in-service noise exposure is considered to probative and persuasive as the audiologist reviewed the claims file, provided a fully articulated opinion that included a synopsis of the pertinent medical findings, and supported his conclusions with reasoned analysis.  Moreover, the opinion was supported by findings in the service treatment records and cited medical research.  A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Although the Veteran avers that he currently has left ear HL, the only evidence linking this diagnosed left ear HL to service is the Veteran's testimony.  The Board notes that although he is competent to report that he has experienced left ear HL symptoms, he is not competent to relate left ear HL to noise exposure during his military service, as this is a complex medical question, and thus it is not capable of direct lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (existence of a chronic disease may be established by competent lay evidence).  

The Board has considered all of the evidence of record, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board finds the preponderance of the evidence is against the claim and the claim for left ear HL must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014).  

Skin disability

In the June 2012 VA Form 9, the Veteran contended that his skin disability, to include seborrheic dermatitis and tinea versicolor, was a result of his military service.  

During his December 2014 hearing testimony, the Veteran reported that he had problems with the skin on his face, but otherwise noted that his skin disability developed 2 to 3 years after his separation from service, which manifested in the form of nodules on his shoulder.  

The service treatment records reveal that in July 1982, August 1982, and February 1983, the Veteran was treated for a rash in the groin area.  In August 1984, he was treated for a rash on both thighs for 2 weeks.  In March 1985, he was treated for a carbuncle on his left thigh that was lanced.  In August 1985 he complained of experiencing a rash on his face from camouflage.  In May 1986, he complained of a rash on his face, neck and thighs for 7 days, and of 2 bumps on his upper right thigh for 2 days, one of which he had removed.  On physical examination, it was observed that the Veteran had light and flakey spots on both cheeks, both sides of the neck, and a rash on both upper thighs.  He was diagnosed with tinea versicolor.  It was also noted that he had a right pubis infestation, and a furuncle.  

Post-service treatment records dated in February 2010 reflect complaints of peeling, itching, redness, and scaring; and findings of a rash on both hands believed to be possible sebaceous dermatitis.  It was noted that he had this condition on his face and ears with erythema and scaling for several years.  He was observed to have benign appearing verrucoid papules, brown and/or skin colored macules, papules and patches, and/or cystic papules and/or red/violaceous papules and patches, as well as significant localized and/or generalized skin dryness and/or scaling and erythema.  He has been diagnosed with dyshidrotic eczema in his hands secondary to his occupation, sebaceous dermatitis, xerosis, and pruritus.  

A November 2010 VA skin examination report shows the Veteran was diagnosed with dermatitis, eczema, leishmaniasis, lupus dermatophytosis, bullous disorder, psoriasis infections of the skin, cutaneous manifestations of collage vascular diseases and papulosquamous disorders.  The Veteran reported that since active duty he had scaly dry skin problems and had been receiving multiple topical medications without resolution of his condition.  The examiner opined that seborrheic dermatitis was less likely as not caused by or a result of the tinea versicolor experienced while on active duty.  The examiner observed that the Veteran had a facial skin condition documented and treated during active duty that was diagnosed as tinea versicolor.  The examiner noted that the Veteran had been treated by the VA dermatology clinic where he was diagnosed with seborrheic dermatitis.  However, the examiner explained that these two were different diagnoses with separate treatment plans.  

In reaching this decision, the Board has relied on the objective medical evidence of record, including the November 2010 VA examiner's opinion that indicates the Veteran's current skin disability is not related to his treatment for skin problems in service.  The VA opinion is considered to probative and persuasive as the physician reviewed the claims file, provided a fully articulated opinion that included a synopsis of the pertinent medical findings, and supported his conclusions with reasoned analysis.  A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  Further, the opinion is supported by the other objective medical evidence of record.  

Although the Veteran generally avers that he currently has a skin disability related to his military service, the only evidence that the current skin disability is related to his military service is his testimony.  The Board notes that although he is competent to report that he has experienced skin symptoms, he is not competent to diagnose a skin disability or to relate that disability to his military service, as this is a complex medical question, and thus it is not capable of direct lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (existence of a chronic disease may be established by competent lay evidence).  

The Board has considered all of the evidence of record, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  The Board finds the preponderance of the evidence is against the claim and the claim for a skin disability must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2014).  


ORDER

Service connection for tinnitus is granted.  

Service connection for left ear HL is denied.  

Service connection for skin disability is denied is denied.  


REMAND

During his December 2014 hearing, the Veteran reported that he received treatment from "Dr. Bridges" for his claimed right foot and left shoulder disabilities.  See December 2014 hearing transcript, pp. 4, 12, and 18.  Although the Veteran testified that these records were previously submitted directly to VA, review of the claims file shows that they were not, and that the Veteran was not provided with a VA Form 21-4142.  Also, in February 2010 and June 2010, the Veteran submitted VA Form 21-4142 and identified treatment records from "Dr. Jacqueline Buchman" that needed to be obtained.  The RO sent a letter in June 2010 and requested treatment records from the practitioner, and the Veteran was informed of the attempt.  Apparently, records from Dr. Buchman were associated with the claims file at the time of the July 2010 rating decision; however, they are not currently located in the claims file.  Therefore, on remand, an attempt must be made to obtain these records and associate them with the claims folders, either physically or electronically.  38 C.F.R. § 3.159(c)(2).  

Also, the medical evidence is not sufficiently developed to adjudicate the claims for service connection for right knee disability, left knee disability, and lumbar spine disability.  VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2014); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the Veteran has testified that he has right knee and left knee disabilities that are secondary to his service-connected left foot disability, and that he has a lumbar spine disability that is secondary to the bilateral knee disability.  See December 2014 hearing transcript, pp. 7-11.  VA treatment records reflect treatment for bilateral knee pain and lumbar spine pain, and the Veteran has competently testified that he currently has bilateral knee and lumbar spine symptoms of pain.  Therefore, VA examination must be performed on remand.  

Accordingly, the case is REMANDED for the following action:

1. Obtain all outstanding private treatment and/or hospitalization records related to the Veteran's claimed right foot, right knee, left knee, lumbar spine and left shoulder disabilities, to specifically include records from Dr. Bridges and Dr. Buchman.  Any negative response should be in writing, and associated with the claims folder.  

2. Schedule a VA medical examination by an appropriate clinician to determine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's right knee and/or left knee disabilities were caused or aggravated (i.e., permanently worsened) by a service-connected disability, to include the left foot disability.  The clinician should also determine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's lumbar spine was caused or aggravated (i.e., permanently worsened) by a right and/or left knee and/or left foot disabilities).  

Prior to issuing a report, the examiner must review the entire claims file, including a complete copy of this remand, Virtual VA and any lay assertions presented.  

The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility."  Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  

A complete rationale must be provided for all opinions rendered.  If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.  

3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the claims for service connection on appeal.  If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2013).  



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs