Citation Nr: 1612783 Decision Date: 03/30/16 Archive Date: 04/07/16 DOCKET NO. 14-19 439 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a disability of the great right toe, to include as a result of a service-connected disability. 3. Entitlement to a rating in excess of 10 percent for right medial collateral ligament strain (right knee disability). 4. Entitlement to a rating in excess of 10 percent for right Achilles tendonitis. 5. Entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity. 6. Entitlement to a rating in excess of 10 percent for radiculopathy of the left lower extremity. 7. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine. 8. Entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30. 9. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for a left knee disability REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran had active military service from April 1987 to May 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that the issue of entitlement to a rating in excess of 10 percent for right Achilles tendonitis was not certified for appeal. A review of the record reveals, however, that that issue is properly before the Board at this time. Notably, in a May 2011 statement, the Veteran reported that his Achilles tendonitis had worsened. In a November 2011 rating decision, the RO, among other things, continued the 10 percent rating assigned for the Veteran's service-connected right Achilles tendonitis. A May 2012 report of general information then states that the Veteran had indicated that he was not seeking an increased rating for his right Achilles tendonitis. The July 2012 rating decision notes the same and states that that issue will therefore not be addressed in that rating decision. The Veteran's July 2012 notice of disagreement (NOD) also makes no mention of the right Achilles tendonitis rating. However, an October 2012 report of general information records that Veteran's did want to seek an increased disability evaluation for his right Achilles tendonitis, noting that the Veteran desired to appeal the RO's November 2011 decision to continue his 10 percent rating. The issue of entitlement to a rating in excess of 10 percent for right Achilles tendonitis was then addressed by the RO in a March 2014 statement of case (SOC) and the Veteran thereafter timely filed a VA Form 9 (Appeal to the Board of Veterans' Appeals). Accordingly, the Board concludes that the issue of entitlement to a rating in excess of 10 percent for right Achilles tendonitis is also properly before it at this time. Further, and as will be discussed in more detail below, the Veteran has repeatedly asserted that the RO is erroneously adjudicating a claim of service connection for a left ankle disability, stating that it is a right ankle disability for which he is seeking VA disability benefits. In this regard, the Board notes that the exact nature of the Veteran's claim is somewhat unclear. He does, however, have a diagnosis of right ankle osteoarthritis that would appear to be a separate disability from his already service-connected right Achilles tendonitis, which disability is evaluated under diagnostic criteria pertaining to the feet and not the ankle. As the issue of entitlement to service connection for a right ankle disability has not been adjudicated by the agency of original jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran has made clear that he did not desire to pursue, let alone appeal, a claim of service connection for a left ankle disability; his VA Form 9 cannot be read as evidencing an intent to appeal the RO's denial of service connection for a left ankle disability. 2. By a May 2008 decision, the RO denied a claim a of service connection for a left knee disability, which decision became final. 3. Evidence received since the May 2008 rating decision relates to unestablished facts necessary to substantiate the claim of service connection for a left knee disability and it raises a reasonable possibility of substantiating the underlying claim. 4. The competent and credible evidence of record fails to demonstrate that the Veteran sustained an injury to his left knee in service. CONCLUSIONS OF LAW 1. The appeal concerning the issue of entitlement to a left ankle disability is dismissed. 38 U.S.C.A. §§ 7105, 7108 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302, 20.303 (2015). 2. A May 2008 rating decision, which denied service connection for a left knee disability, is final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 3. New and material evidence has been submitted since the May 2008 rating decision; as a result, the claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2015). 4. The Veteran does not have a left knee disability that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal - Left Ankle Claim Turning first to the Veteran's adjudicated claim of service connection for a left ankle disability, a review of the record shows that in December 2011, the RO received the Veteran supplemental claim for compensation (VA Form 21-526b) wherein he indicated his desire to reopen previously denied claims of service connection for, among other things, a "bilateral ankle condition." A March 2012 VA Form 21-4138 (Statement in Support of Claim) documents that the Veteran had presented to VA "to state that his bilateral ankle condition is his primary condition and his bilateral bursitis (bone spurs) or his big toes is secondary to the ankles." A May 2012 report of general information then records the following: "[The Veteran] said that the claim for bilateral ankle condition is incorrect and has been confused with his claim for his service connected right Achilles condition." The Veteran was informed that he had submitted a claim for a bilateral ankle condition in December 2011 and had subsequently referred to an ankle condition. The Veteran then requested that VA "remove all references to bilateral ankle condition." Despite the Veteran's expressed desire, the RO, in its July 2012 rating decision, denied service connection for a left ankle disability upon finding that new and material evidence sufficient to reopen the claim had not been submitted. (Entitlement to service connection for a left ankle disability was previously denied by the RO in a July 1995 rating action.) The Veteran's representative then included the left ankle issue in the July 2012 NOD. However, the Veteran thereafter submitted an annotated copy of that NOD wherein he indicated that the ankle claim should refer to the right ankle and not the left. An October 2012 report of general information also records the Veteran's clarification that he was not seeking disability benefits for a left ankle or left Achilles condition. Again, despite the Veteran's clarification, the left ankle claim was included in the March 2014 statement of the case (SOC). The Veteran thereafter filed a VA Form 9 wherein he argued that the AOJ had adjudicated a claim for the incorrect extremity, stating that he had previously informed the RO that his claim was for a right ankle disability and not a left ankle disability. The RO then certified for appeal to the Board the issue of entitlement to service connection for a left ankle disability. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (2015). A Substantive Appeal consists of either a properly completed VA Form 9 or of correspondence containing the necessary information. If the SOC and any prior supplemental SOCs (SSOCs) addressed several issues, the Substantive Appeal must either indicate that all of the issues presented in applicable SOCs and supplemental SOCs are being appealed or must specify the particular issues being appealed. It should also set out specific arguments related to errors of fact or law made by the AOJ in reaching the determination being appealed. See 38 C.F.R. § 20.202 (2015). If a claimant does not file a timely Substantive Appeal and VA does not waive the timeliness requirement, however, then "the Board may decline to exercise jurisdiction over the matter." Percy v. Shinseki, 23 Vet. App. 37 43 (2009) (citing Roy v. Brown, 5 Vet.App. 554, 555 (1993)). In the instant case, it is clear that the Veteran did not desire to pursue, let alone appeal, a claim of service connection for a left ankle disability. Indeed, the VA Form 9 filed in connection with the Veteran's current appeal expressly states that the RO erroneously adjudicated a claim of service connection for a left ankle disability. Given the Veteran's clear expression, and the fact that the VA Form 9 cannot be read as encompassing an appeal of the issue of entitlement to service connection for a left ankle disability, the Board concludes that it does not have jurisdiction to consider the claim as the requirements for filing an appeal of this issue have not been met. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Accordingly, the appeal as to the issue of entitlement to service connection for a left ankle disability is dismissed. As noted in the introduction, the issue of entitlement to service connection for a right ankle disability has been referred to the AOJ for adjudication appropriate action. The Board notes that when it, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative, if any, will be given notice of the potential jurisdictional defect and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question. 38 C.F.R. § 20.101(d) (2015). The Board may dismiss any case over which it determines it does not have jurisdiction. Id. Although such notice was not provided to the Veteran, the Board finds any error in this regard to be harmless as it is clear from multiple communications from the Veteran himself that he did not desire to pursue, let alone appeal, a claim of service connection for a left ankle disability. II. Petition to Reopen - Left Knee Claim By way of a May 2008 rating decision, the RO denied the Veteran's claim of service connection for a left knee disability. The Veteran did not disagree with the RO's denial of that claim and the May 2008 rating decision became final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). As a result of the finality of the May 2008 RO decision, the Veteran's claim of service connection for a left knee disability may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108 (West 2014); Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2015). Section 3.156(a) of title 38, Code of Federal Regulations provides the following definitions of new and material evidence: New evidence means existing evidence not previously submitted to agency decisionmakers. 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); see Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir. 1998). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). To determine whether new and material evidence has in fact been submitted, the Board first must compare the evidence submitted since the previous final denial with evidence previously of record. If the newly submitted evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not merely cumulative of other evidence that was then of record, it will be considered "new evidence" under 38 C.F.R. § 3.156(a). If the evidence is in fact new, the Board will then consider whether it is also material. In this regard, the Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124 (Lance, J. concurring). In its May 2008 decision, the RO denied service connection for a left knee disability upon finding that the evidence of record failed to demonstrate the existence of a left knee disability in service and/or show that the Veteran had a currently diagnosed left knee disability that is attributable to the Veteran's period of military service. Evidence received and/or developed since the May 2008 RO decision includes the report of a January 2013 VA examination that records a diagnosis of left knee strain. In light of this evidence, the Board finds, as did the RO in its March 2014 SOC, that the Veteran's claim of service connection for a left knee disability must be reopened, as the evidence demonstrating a diagnosed left knee disability is considered new and material. That is, the evidence of record at the time of the May 2008 rating decision did not show a diagnosed left knee disability. Evidence of a current diagnosis also substantiates an element of service connection previously found to be lacking. See Hickson v. West, 12 Vet. App. 247, 253 (1999) (establishing service connection requires, among other things, evidence of a current disability). Accordingly, the claim of service connection for a left knee disability is reopened with the submission of new and material evidence. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). III. Service Connection Turning to the underlying claim of service connection for a left knee disability, the Board notes that the RO denied that claim on the merits in the March 2014 SOC upon finding that the evidence failed to establish that the Veteran's diagnosed left knee strain is attributable to service. Upon review of the evidence, the Board agrees that service connection is not warranted in this case. Notably, in addition to evidence demonstrating a currently diagnosed disability, establishing service connection also requires medical or, in certain circumstances, lay evidence of and in-service incurrence or aggravation of a disease or injury and a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson, supra. In this case, the Board finds that credible evidence demonstrating that the Veteran sustained an injury to his left knee in service is lacking. In the instant case, the Veteran's service treatment records (STRs) fail to reveal any complaints or findings relevant to the left knee, to include any reported in-service injury thereto. During his January 2013 examination, the Veteran reported injuring his left knee during a parachute jump in 1987, after which he was treated with Motrin and placed on a profile. There is no question that the Veteran is competent to report as to the circumstance of his alleged injury in service. However, to be probative, his statement must also be credible. The Board is mindful that it "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed.Cir.2006). Here, however, there is simply no evidence to substantiate the Veteran's assertion that he was placed on a profile in service due to an injury of the left knee. Had the Veteran been placed on a profile, the Board would expect to find documentation of such in the Veteran's service records, which evidence is lacking. Further, the Veteran's STRs are replete with references to a jump injury to the right knee. One would assume that had the Veteran also injured his left knee, he would have mentioned it when seeking treatment related to the right knee. The Board finds that the lack of any indication in the Veteran's STRs that he indeed injured his left knee during a parachute jump weighs against a finding that any such injury was in fact sustained. See Kahana v. Shinseki, 24 Vet. App. 428, 439 (2011) (Lance, J., concurring) (the Board may infer from silence in a record that a particular symptom was not observed if it is reasonable to assume that such a symptom would have been recorded had it been present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (noting that, where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). Ultimately, the Board finds, in this case, that the lack of any in-service evidence documenting, or even suggesting, an injury to the left knee during service, along with the multiple notations and references to the Veteran having sustained a right knee injury during a parachute jump, make him an incredible historian as to his assertion of a left knee injury in service. See Buchanan, 451 F.3d at 1337 ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."). Accordingly, the Board finds there to be no evidence, other than the Veteran's own statement, which the Board has deemed not credible, that the Veteran sustained a left knee injury in service. Without evidence of in-service incurrence or aggravation of a disease or injury, a finding of service connection cannot be made. See Davidson, supra. IV. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not disputed the contents of the VCAA notice provided to him. Further, the Board finds that the Veteran was adequately informed of the information and evidence necessary to substantiate the underlying claim of service connection for a left knee disability denied herein via a letter dated in May 2012, which the Board finds complies with the requirements of 38 U.S.C.A. § 5103(a) and Dingess, supra. Thus, the Board finds that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board is satisfied that the duty to assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the herein decided has been obtained. The evidence includes the Veteran's STRs, VA treatment records, VA examination reports, and statements from the Veteran. The Board notes that, as will be discussed in the below remand portion of this decision, that there is a question as to whether the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). Generally, once VA is put on notice that the Veteran has been granted SSA benefits, VA has a duty to obtain the records associated with that decision. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Here, however, the outcome of the Veteran's claim turns on whether he sustained an in-service injury to his left knee, a determination of which is based on the Veteran's lay statements and information contained in his service treatment records. The Board points out that the duty to assist "is not boundless in its scope" and "not all medical records or all SSA disability records must be sought--only those that are relevant to the veteran's claim." Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010). Given the basis for the Board's denial of the Veteran's claim, along with the fact that the Veteran has not alleged that information contained in his SSA records, to the extent that any exist, would be relevant to determining whether the Veteran indeed suffered an injury to left knee in service, the Board concludes that no reasonable possibility exists that any existing SSA records would aid in substantiating the claim of service connection for a left knee disability. Accordingly, the Board finds no reason to remand the claim of service connection for a left knee disability simply to ascertain whether the Veteran is in receipt of SSA disability benefits. Id. Further, the Veteran was afforded a VA examination in connection with his claim of service connection for a left knee disability. A review of the examination report reveals that the examiners reviewed the claims folder and considered the lay contentions of the Veteran, before expressing an opinion regarding the likelihood that the Veteran has a left knee disability related to service. The Board thus finds that the Veteran has been afforded an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). ORDER The appeal as to the issue of entitlement to service connection for a left ankle disability is dismissed. Service connection for a left knee disability is denied. REMAND The last VA compensation examination concerning the Veteran's service-connected right Achilles tendonitis was conducted in June 2011 and the last VA compensation examinations concerning the Veteran's service-connected right knee and low back, to include his bilateral lower extremity radiculopathies, were conducted in January 2013. (The Board notes that a specific peripheral nerves examination has not been conducted since September 2012.) In a March 2015 brief, which is contained in the Veteran's VBMS file, the Veteran's representative reported the Veteran's assertion that these service-connected disabilities have worsened since VA examinations were conducted in May and June 2012. Although examinations were conducted after that time, the Board will nevertheless resolve reasonable doubt in favor of the Veteran and remand the increased rating claims for the Veteran to be scheduled for additional VA examinations to determine the current severity of his right Achilles tendonitis, right knee disability, low back disability, and bilateral lower extremity radiculopathies. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327(a) (2012) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). Additional examinations are also necessary to assess the Veteran's employability. Here, the Veteran has alleged that he is unable to work due to his back disability. The Board notes that the issue of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when that issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). During a February 2010 VA psychiatric examination, the Veteran reported that he had stopped working in part due to problems with his back. In June 2010, the RO denied entitlement to TDIU because the Veteran had not completed a VA Form 21-8940. Although the Veteran did not appeal that denial, the Board concludes that the issue of entitlement to TDIU is nevertheless properly before it as part of the Veteran's low-back increased rating claim. This is so because "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Id. at 453-54. The Board notes that it may not deny TDIU without producing evidence, as distinguished from mere conjecture, that a veteran's disability does not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995); Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, it was stated specifically that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect a claimant's service-connected disability or disabilities has on his ability to work. Friscia, 7 Vet. App. at 297. Here, although the January 2013 examiner indicated that the Veteran's low back disability impacted his ability to work, no VA examination conducted during the pendency of the Veteran's appeal specifically assessed the Veteran's employability, based on both an assessment of all his service-connected disabilities and his educational and occupational history and experience. Given the absence of relevant clinical information regarding the Veteran's employability, the Board finds that the current medical evidence of record is inadequate to address fully the Veteran's increased rating claims and further development is therefore necessary. See 38 U.S.C.A. § 5103A(d) (West 2014); Friscia, supra. As to the Veteran's claim of service connection for a disability of the right great toe, the evidence of record shows that the Veteran has been diagnosed as having hallux rigidus and osteoarthritis of the right foot/1st metatarsophalangeal joint, as well as dorsal bunions. A June 2011 VA podiatry clinic notes records the Veteran's complains of right great toe pain, which he alleged began during service and had worsened over the last 18 months since he sprained his ankle. The Veteran apparently underwent a bunionectomy in October 2011, as evidenced by an August 2012 VA treatment record. Notably, the podiatrist who evaluated the Veteran on that date opined that the Veteran's degenerative arthritis and dorsal bunion was caused by and aggravated by his chronic Achilles tendonitis in that the great toe joint was being jammed into an abnormal gait cycle caused by the painful Achilles tendonitis. The clinician also stated that the big toe joint was injured at the same time as the Achilles injury but took longer to manifest itself in the foot. Contrary to that clinician's opinion, a VA examiner who examined the Veteran in January 2012 stated that the great toe is anatomically separate from and only tenuously connected biomechanically to the Achilles tendon. The VA examiner went on to state that the tendonitis, if anything, would be expected to lead to less stress upon the great toe, not increased stress. In consideration of the competing medical opinions, the Board finds that additional development is necessary as neither opinion provides an analysis that the Board can consider and weigh against the contrary opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (providing that to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); See Nieves-Rodriguez, supra (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). Further, the Veteran has alleged that his right great toe disability may be attributable to his Achilles tendonitis, low back disability, and/or right knee disability. The medical evidence of record, however, addresses only one of these theories. Accordingly, the Board finds that the Veteran's claim of service connection a disability of the right great toe must be remanded for additional development. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Regarding the issue of entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 for a period of convalescence following surgery related to the claimed great right toe disability, that matter it is inextricably intertwined with the claim of service connection for a disability of the right great toe, which claim is being remanded, because the outcome of that claim may have a bearing upon whether the assignment of a temporary total rating is warranted. As such, the Board will defer action on the issue of entitlement to a temporary total disability rating under the provisions of 38 C.F.R. § 4.30 until after the issue of entitlement to service for a disability of the great right toe has been re-adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Lastly, the evidence of record raises a question as to the existence of relevant SSA records. Although it is not evident from the record that the Veteran is in fact in receipt of SSA disability benefits, the evidence shows that in September 2008, the RO requested from SSA any disability records pertaining to the Veteran. The response received that month indicated that SSA was unable to locate a medical record. In August 2012, the RO again requested from SSA any disability records pertaining to the Veteran. A second request was sent the following month. It does not appear that a response was ever received. On remand, the AOJ should ascertain affirmatively whether or not the Veteran is receiving SSA disability benefits and, if so, obtain any records that may be relevant to the Veteran's pending claims. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care who may possess additional records relevant to his claim. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder. The AOJ should also ensure that all relevant VA treatment records have been associated with the Veteran's claims folder. 2. The AOJ should contact the Veteran and ascertain whether he is in receipt of SSA disability benefits. If the Veteran does not respond to the request of if the Veteran indicates that he in receiving SSA disability benefits, the AOJ should contact SSA and request verification of whether the Veteran is in receipt of SSA disability benefits. If the Veteran is receiving such benefits, the AOJ should request all records pertinent to the Veteran's claim for SSA disability benefits and the medical records relied upon concerning that claim. All procedures outlined in 38 C.F.R. § 3.159(c)(2) should be followed. 3. The AOJ should schedule the Veteran for a VA examination in connection with his claim for higher evaluation of his lumbar spine disability. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should identify all chronic orthopedic manifestations of the Veteran's lumbar spine disability and include range of motion findings. The examiner should state whether the Veteran's service-connected degenerative disc disease of the lumbar spine is manifested by weakened movement, excess fatigability, incoordination, or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. The examiner should also comment on the Veteran's employment and employability. (A detailed history of education and employment should be taken.) The examiner is requested to provide an opinion as to whether the Veteran is unable to secure or follow substantially gainful employment consistent with the Veteran's education and occupational experience on account of his service-connected disabilities, paying particular attention to the Veteran's assertion that he stopped working on account of his back problems. 4. The AOJ should schedule the Veteran for a VA examination in connection with his claim for higher evaluations his left and right lower extremity radiculopathies. (This examination may be combined with the examination of his lumbar spine if it is determined to be appropriate to do so and the clinician is competent to address the severity of both disabilities.) The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All necessary tests should be conducted and the results of any testing should be fully documented and explained in the examination report. The examiner should then determine the nature, extent, frequency and severity of any neurologic impairment related to or part of the Veteran's service-connected radiculopathy of the right lower extremity and/or radiculopathy of the left lower extremity. As to each of the service-connected disabilities (radiculopathy of the right lower extremity and radiculopathy of the left lower extremity), the examiner should indicate whether it is productive of incomplete paralysis as opposed to complete paralysis or productive of incomplete paralysis. If it is productive of incomplete paralysis, the examiner should characterize the disability as productive of mild, moderate, moderately severe, or severe (with marked muscular atrophy) impairment. The examiner should explain the conclusion reached. 5. The AOJ should schedule the Veteran for a VA examination in connection with his claim for a higher evaluation of his service-connected right knee disability. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All appropriate tests and studies, to include x-rays, should be performed and all clinical findings should be reported in detail. The results of any testing must be included in the examination report. The examiner should identify all chronic orthopedic manifestations of the Veteran's service-connected right knee disability and include range-of-motion findings. The examiner should state whether the Veteran's service-connected right knee disability is manifested by weakened movement, excess fatigability, incoordination, or pain. The examiner should then provide an opinion as to the extent of functional loss due to pain, incoordination, weakness, pain on flare-ups, and fatigability. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits. This should be done for both loss of extension and loss of flexion. 6. The AOJ should schedule the Veteran for a VA examination in connection with his claim for a higher evaluation of his service-connected right Achilles tendonitis. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. Range of motion testing should also be conducted. The results of any testing must be included in the examination report. The examiner should also identify all functional impairments attributable to the Veteran's right Achilles tendonitis and provide the necessary findings for the Board to apply the rating criteria. 7. The AOJ should schedule the Veteran for a VA examination with a podiatrist. The podiatrist should be asked to review the record, to include the January 2013 VA examination findings and the August 2012 VA podiatrist's statement and treatment records, take a detailed history from the Veteran with regard to the onset and progression of his reported foot/right great toe pain, conduct all necessary tests, to include x-rays of the Veteran's feet, and address the following: a) The podiatrist should identify all current disabilities of right foot. b) The podiatrist should then opine whether it is at least as likely as not that any such current disability began during the Veteran's military service or is related to an event coincident with military service, to include the injury leading to the Veteran's development of Achilles tendonitis as discussed by the VA podiatrist in the August 2012 treatment note. c) The podiatrist should also opine as to whether it at least as likely as not the Veteran's service-connected low back disability, right knee disability, and/or right Achilles tendonitis has caused or made chronically worse any identified disability of the right great toe. In so opining, the reviewer should comment on the August 2012 VA examiner's opinion that the Veteran's degenerative arthritis and dorsal bunion was caused by and aggravated by his chronic Achilles tendonitis in that the great toe joint was being jammed into an abnormal gait cycle caused by the painful Achilles tendonitis. The podiatrist must address both causation and aggravation for each disability and separate opinions must be provided for the low back, right knee, and right Achilles tendonitis. Regardless of whether the podiatrist's opinion as to any question is favorable or negative, the examiner must provide support for his/her opinion(s). Merely stating that it is his/her opinion that a condition was not caused or aggravated by service is not sufficient. An explanation is required that takes into account the record and pertinent medical principles merely stating that it is his/her opinion that a condition was not caused or aggravated by service is not sufficient. 8. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. In particular, the AOJ should ensure that the VA podiatrist has provided all requested information and had addressed both causation and aggravation for each disability and had provided separate opinions for the low back, right knee, and right Achilles tendonitis. In total, six opinions should be provided regarding entitlement to secondary service connection for a disability of the great right toe. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 9. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues remaining on appeal. The AOJ must also specifically consider whether a rating of TDIU is warranted as part of its readjudication of the Veteran's rating claims. If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished an SSOC and afforded the appropriate period for response. (The SSOC should also address the TDIU question if this benefit is not granted.) The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs