Citation Nr: 1509572 Decision Date: 03/06/15 Archive Date: 03/17/15 DOCKET NO. 12-33 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of fracture to right lateral malleolus with degenerative changes (right ankle disability). 2. Entitlement to service connection for a right foot disorder. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as right leg condition. 4. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for residuals of torn medial meniscus status post meniscectomy (right knee disorder). 5. Entitlement to service connection for residuals of torn medial meniscus status post meniscectomy (right knee disorder). REPRESENTATION Veteran represented by: Michael Quatrini, attorney at law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Johnson, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1961 to January 1964. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. In February 2013, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) via videoconference. A transcript of that hearing is associated with the claims file. Following the hearing, the record was held open and additional private medical records were received and associated with the claims file. The Veteran's representative also submitted a written statement waiving RO consideration of this new evidence, and therefore appellate consideration may proceed without any prejudice to the Veteran. See 38 C.F.R. 20.1304(c). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" and "VBMS" systems to ensure a total review of the evidence. The issues of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran has limited motion of the right ankle, but he experiences additional functional loss from instability. 2. The Veteran's pre-existing right foot disability did not increase in severity during service, or was otherwise caused by his active duty service. 3. The Veteran's current right leg peripheral neuropathy did not begin during, or was otherwise caused by, his active duty service. 4. Evidence obtained since the July 1991 Board decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for residuals of right torn medial meniscus status post meniscectomy. CONCLUSIONS OF LAW 1. The criteria for a rating not to exceed 20 percent for service-connected residuals of fracture to right lateral malleolus with degenerative changes have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271 (2014). 2. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C.A. §§ 1131, 1132, 1153 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2014). 3. The criteria for service connection for right leg peripheral neuropathy have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014). 4. The July 1991 Board decision, which denied entitlement to service connection for residuals of right torn medial meniscus status post meniscectomy is final; new and material evidence has been submitted, and the Veteran's claim is reopened. 38 U.S.C.A. §§ 5108, 7103 (West 2014); 38 C.F.R. §§ 3.156, 20.1100 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Right Ankle The Veteran is seeking a rating in excess of 10 percent for his service-connected right ankle disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the Veteran's right ankle disability has been assigned a 10 percent rating throughout the period on appeal under Diagnostic Code (DC) 5271, for limitation of motion of the ankle. Under this DC, a 10 percent rating is warranted for moderate limitation of motion of the ankle, a maximum 20 percent rating is warranted for marked limitation of motion. 38 C.F.R. § 4.71a. Additionally ratings may be assigned under different DCs for ankylosis, malunion of the ankle, or astragalectomy (surgical removal of the talus bone). Under VA regulations, normal range of motion of the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. As will be discussed, the Board finds the criteria for a higher 20 percent rating have been met. The Veteran filed his current claim in February 2011. In May of that year he was provided with a VA examination. The examiner reviewed the Veteran's complete claims file, as well as personally interviewed and examined the Veteran. The Veteran reported experiencing chronic soreness in the medial aspect of his right ankle, with flares of pain two to three times per week after walking. He also reported chronic stiffness, giving way, and locking of his right ankle. He demonstrated dorsiflexion to 10 degrees and plantar flexion to 35 degrees, with stiffness and pain at end ranges, with no additional loss of range of motion after repetitive use. An x-ray from June 2010 revealed posttraumatic arthritis in the Veteran's right ankle, as well as a healed avulsion fracture. The examiner noted the Veteran wore a brace on his right ankle, and limped slightly to the right as he walked. Private medical records from Dr. Habib also reflect instability of the right ankle with limited mobility, although no range of motion results are provided. Therefore, the medical evidence reflects the Veteran was still able to dorsiflex his ankle to 10 degrees and plantar flex his ankle to 45 degrees, reflecting moderate impairment of range of motion impairment. However, the report also reflects the Veteran experienced instability and locking of his right ankle, which resulted in requiring a brace and abnormal gait. Although symptoms of abnormal gait and instability of the ankle are not specifically contemplated by the rating criteria, the Board finds these symptoms constitute additional functional loss. Therefore, affording all benefit of the doubt, the Board finds the Veteran's additional symptoms of right ankle functional loss, including posttraumatic arthritis resulting in instability and altered gait, due to the service-connected right ankle disability are equivalent to the impairment that would result from marked limitation of motion. Accordingly, resolving doubt in his favor and considering functional loss, a maximum 20 percent rating is warranted. Because a 20 percent rating is the maximum schedular rating available for the Veteran's service connected right ankle under this DC, no higher rating is available. Additionally, the medical evidence does not reflect the Veteran experienced ankylosis, nonunion, or astragalectomy in his right ankle at any point during the period on appeal. Accordingly, increased or separate ratings under these diagnostic codes are not available. 38 C.F.R. § 4.71a, DC 5270, 5272-5274. Based on the foregoing, and affording all benefit of the doubt to the Veteran, entitlement to a rating not to exceed 20 percent for service-connected right ankle disability is granted. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the evidence does reflect the Veteran experienced some symptoms not contemplated by the schedular rating criteria, including instability in his right ankle. However, these very symptoms were the basis of the award for a higher, maximum rating awarded above. In this regard and consistent with the reasoning presented above, the Board finds that the assigned schedular rating is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. Aug. 6, 2014). The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board acknowledges that the Veteran is no longer employed. He has not, however, alleged that he is unemployable on account of his service connected right ankle disability. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected right ankle disability. Service Connection The Veteran is also seeking service connection for several disabilities. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Right Foot Disorder The Veteran is seeking service connection for a right foot disorder. A Veteran is generally presumed to have been in sound condition upon entrance to active duty service except for any disorders noted on the entrance examination. 38 U.S.C.A. § 1132. However, in this case, the Veteran's second degree pes planus was noted on his January 1961 entrance examination. Accordingly, the Veteran's pes planus was therefore pre-existing under VA regulations. Id; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). When 38 U.S.C.A. § 1153 applies, the burden falls on the Veteran to establish aggravation. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). In this case, the Veteran has not established that his pre-existing pes planus increased in severity during active service. Service treatment records do not reflect the Veteran sought any treatment for, or made any complaint of, his pre-existing pes planus during active service. Between December 1963 and January 1964, he received treatment, including x-rays and a cast, for fracture of his right ankle following his in-service fall, but no injury to his foot was noted. At his November 1963 separation examination, the Veteran's pes planus was again noted, however there is no indication this pre-existing condition increased in severity. Moreover, in the accompanying Report of Medical History, the Veteran himself specifically denied experiencing any foot trouble, providing probative contemporaneous evidence against his appeal. Therefore, the evidence does not establish the Veteran's pre-existing bilateral pes planus increased in severity during his active duty service. Additionally, post-service treatment records do not reflect the Veteran made any complaint of, or sought any treatment for, any right foot disorder shortly after his separation from active service. The records reflect he received extensive treatment for his right ankle and knee after service, but he did not report any foot pain for several years. Moreover, during his initial September 1980 claim for VA benefits, the Veteran reported problems with his right knee and ankle, however did not make any complaint of right foot problems. Because the Veteran was already seeking VA benefits for problems with his lower extremities, it is reasonable to assume he would have also reported any right foot pain he was experiencing at the time. Therefore, in the circumstances of this case, the Board finds his failure to report any right foot symptoms for several years after his separation from active service provides probative evidence against his appeal. The medical records reflect the Veteran began to experience pain in his right foot in the late 1970s. For example, in April 1979 the Veteran reported his right foot was sore and swollen. However, an x-ray from 1983 reflects an old injury to the interosseous membrane between the tibia and fibula, but no evidence of fracture or dislocation of the foot. Therefore, the results of this x-ray, conducted nearly twenty years after his separation from active service, does not reflect any right foot disorder. The Veteran continued to seek treatment for pain in his foot. For example, during his May 1989 VA examination the Veteran reported his right heel was very painful. However, in September 1990 a VA physician opined the Veteran's early arthritic changes in his foot were not related to his in-service fall, providing additional evidence against the Veteran's appeal. In May 2011, the Veteran was provided with a VA examination. During the examination, the Veteran reported his right foot pain was the same as his ankle pain. The examiner noted a recent x-ray revealed pes planus and hammertoe deformity of the toes. The examiner noted the Veteran's history of prior surgery to his right ankle, as well as degenerative changes reflected in a recent x-ray. However, the examiner opined the Veteran's currently diagnosed bilateral pes planus was not related to service, and was not related to his service-connected right ankle disability. Based on the foregoing, the evidence does not establish the Veteran's pre-existing pes planus increased in severity during his active duty service, or that the Veteran developed any other foot disorder during or shortly after his separation from active service. Accordingly, direct service connection is not established. Additionally, the VA examiner opined his current foot disorder was not related to his service-connected right ankle disability, and the claims file does not include any medical opinion to the contrary. Accordingly, the elements of service connection have not been met, and the Veteran's appeal is denied. Peripheral Neuropathy of Right Leg The Veteran is also seeking service connection for peripheral neuropathy of the right leg, claimed as right leg disorder. The Veteran has asserted that his current pain and numbness of the right leg is related to his in-service injury of his right ankle. At his February 2013 hearing, the Veteran explained that in the winter of 1963 he fell on icy steeps and twisted his right ankle, as well as injuring his right foot, knee, and leg. He stated as a result of these injuries he was placed in a cast from his foot to his groin, which was removed shortly before his separation from service. Service treatment records have been reviewed and considered. These records reflect the Veteran did injure his right ankle after falling in the winter of 1963, and was placed in a cast. However, service treatment records do not reflect the Veteran reported any symptoms of pain or numbness in his right leg, and the records do not reflect how large the cast was that was placed on the Veteran. Additionally, his November 1963 separation examination noted the Veteran's bilateral pes planus, but otherwise indicated his lower extremities were normal. In the accompanying Report of Medical History, the Veteran indicated he was in "good health" and did not report any right leg symptoms. He also specifically indicated he did not experience any neuritis. Therefore, although the service treatment records reflect the Veteran injured his right ankle following a fall during active service, these records do not reflect he experienced any right leg symptoms, including numbness, during active duty service. The Veteran filed his initial claim for VA benefits in September 1980. At that time, he reported problems with his right knee and ankle, but made no mention of any right leg symptoms, including numbness. Private treatment records from September 1980 reflect the Veteran sought treatment for severe swelling of his right leg following removal of cast after ankle surgery. The medical professional at Latrobe Hospital suggested the Veteran's right leg swelling was related to thrombophlebitis (swelling due to a blood clot); however, the September 1980 venogram was normal. Treatment was rest and anti-inflammatory medication. However, the 1980 medical records make no mention of symptoms of neuropathy, including numbness. Additionally, at his November 1980 VA examination no right leg symptoms, including numbness, were reported or observed. In April 1988, the Veteran made his second claim for VA benefits, seeking disability benefits related to his right knee and right hand, but again did not make any mention of right leg symptoms. Therefore, the Veteran experienced swelling in his right leg in 1980; however, there is no indication from the medical records or his claims documents that he experienced the symptoms on appeal, pain and numbness, in the first 20 years after his separation from active duty service. Instead, the earliest indication the Veteran experienced pain and numbness in his right leg is from his October 1988 VA examination. The examiner noted the Veteran sometimes felt numbness in his right thigh, and opined this minimal right quadriceps weakness may be due to mild degenerative arthrosis of the right knee. Therefore, the examiner did not relate the Veteran's right thigh numbness to his active duty service or service-connected right ankle. Treatment records from the period on appeal reflect the Veteran is currently diagnosed with chronic venous insufficiency and peripheral neuropathy of the right leg. However, during his May 2011 VA examination the examiner opined the Veteran's chronic right leg swelling from venous statsis was not related to his right ankle condition, or any in-service injury. The examiner noted the Veteran was morbidly obese and had diabetes, both unrelated to his active duty service. The examiner also indicated the Veteran's current numbness and tingling of the right leg were due to his diagnosed diabetic neuropathy, and was therefore not related to his service-connected right ankle disability or any in-service injury. Therefore, the examiner opined the Veteran's symptoms of neuropathy were not related to his right ankle condition or active service. Subsequent medical treatment records continue to relate the Veteran's current symptoms of pain and numbness in his right leg to sources other than his active duty service. For example, in December 2011 the Veteran's right leg was noted to be "very edematous" and discolored, and the VA medical professional suspected these symptoms had a vascular etiology, that is related to the Veteran's circulatory system. Suspected vascular etiology was again noted in June 2012. In October 2012, the Veteran's private physician, Dr. Habib, also noted symptoms of numbness and tingling in the Veteran's right leg, as was as a history of cellulitis. However, Dr. Habib did not provide any opinion as to the etiology of these symptoms. Based on all the foregoing, the evidence does not establish the Veteran's current right leg disorders, diagnosed as venous insufficiency and neuropathy, are related to his active duty service. Service treatment records and post-service treatment records do not reflect the Veteran experienced his current symptoms of pain and swelling in his right leg during active service, or for more than two decades after his separation from active duty service. The VA examiner's opinion reflects these diagnosed disorders are related to the Veteran's obesity and non service-connected diabetes mellitus, and are therefore not related to his active duty service or service-connected right ankle disability. The claims file does not include any medical opinion which relates the Veteran's current right leg symptoms to his active duty service. Because the Veteran's currently diagnosed disorders of venous insufficiency and neuropathy are not related to his active duty service, service connection is denied. New and Material Evidence Right Knee The Veteran is also seeking to reopen his previously denied claim for service connection for right knee disorder. This claim was previously denied in a July 1991 Board decision, for failure to establish a nexus to active duty service. This decision has not been reconsidered or appealed and is therefore final. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100(a). However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 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). The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, the initial question before the Board is whether new and material evidence has been presented to reopen the claim. At the time of the July 1991 Board decision, the claims file included service treatment records, post-service VA treatment records, private treatment records, and the reports from two VA examiners' reports. The Board found the Veteran's right knee disorder was not related to his active duty service or his service-connected right ankle disability, and denied his claim. The Veteran filed his current claim in February 2011. Considerable additional evidence has been presented in conjunction with the claim to reopen. Because the Board concludes that this new evidence is sufficient to reopen the Veteran's claim, only a limited amount of the new evidence will be discussed. Specifically, the evidence includes a February 2011 letter from Dr. Ray and an April 2013 letter from Dr. Habib which each opined the Veteran's current right knee disorder was related to his service-connected right ankle disability. Because this evidence was not before the VA during the previous July 1991 Board decision, this evidence is therefore "new." As discussed, both letters relate the Veteran's current right knee disorder to his service-connected right ankle disability. Therefore, the new evidence also raises a reasonable possibility of substantiating the reason the Veteran's claim was previously denied, that is failure to establish a nexus to service, and is therefore "material." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As such, new and material evidence has been presented and the Veteran's claim for entitlement to service connection for a right knee disorder is reopened. To this limited extent, his appeal is granted. The issue of entitlement to service connection for a right knee disorder must be remanded for additional development, as will be discussed in the 'remand' portion. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in August 2011, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. In February 2013, the Veteran was provided with a hearing before the undersigned VLJ, via videoconference. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. 23 Vet. App. 488 (2010). They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by his representative attorney Michael Quantrini, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed disabilities, specifically regarding current severity and any relation to active service. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file. Following the hearing the claims file was held open and additional evidence from the Veteran's private physician, Dr. Habib, was obtained and associated with the claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disabilities. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A rating not to exceed 20 percent for service-connected right ankle disability is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to service connection for a right foot disorder is denied. Entitlement to service connection for right leg neuropathy, claimed as right leg disorder, is denied. New and material evidence has been presented and the claim for entitlement to service connection for a right knee disorder is reopened. REMAND Right Knee The Veteran's reopened claim for entitlement to service connection for a right knee disorder was not reopened and considered on the merits by the AOJ. Generally where the Board reopens a claim that the AOJ did not, remand is required for AOJ consideration. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). In this case, although the new evidence was sufficient to reopen the Veteran's claims, this evidence alone does not establish service connection for these disorders. Therefore, remand is required for initial AOJ consideration. Additionally, the evidence reflects the Veteran had his first surgery on his right knee by a private physician, Dr. Eiseman, at the Latrobe Area Hospital in Latrobe, Pennsylvania in the 1970s. However, the claims file does not include any medical records from this initial surgery. Therefore, remand is required to obtain these highly relevant records, if available. Finally, the May 2011 VA examiner opined the Veteran's right knee disorder was not related to his service-connected right ankle disorder. However, the examiner did not provide an opinion as to whether the Veteran's current right knee disorder was directly related to his active service. Therefore, remand for a supplemental VA examiner's opinion is required. Accordingly, the case is REMANDED for the following actions: 1. After obtaining the proper authorization from the Veteran, request any available private treatment records from Dr. Eiseman at the Latrobe Area Hospital in Latrobe, Pennsylvania, particularly any records related to the Veteran's 1970s surgery on his right knee, and associate them with the claims file. Any negative response must be fully documented in the claims file. 2. Return the Veteran's file to the May 2011 examiner, if available, or to an equally as qualified medical professional. The examiner should be provided a copy with the Veteran's complete claims file, including the April 2013 letter from Dr. Habib and the February 2011 letter from Dr. Ray, as well as any additional medical records obtained upon remand. Consistent with the factual and medical evidence, the examiner is asked to address the following question: Is it as likely as not (50 percent or greater) that the Veteran's current right knee disability began during, or was otherwise caused by, his active duty service? In answering this question, the examiner should specifically address the April 2013 letter from Dr. Habib, the February 2011 letter from Dr. Ray, and any newly obtained records relating to his first knee surgery. 3. Then, readjudicate the appeal. If the appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs