Citation Nr: 1802182 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-04 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for degenerative joint disease, post op C5-C6 fusion, cervical spine. 4. Entitlement to an increase evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. 5. Entitlement to a total disability for individual unemployability based on service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1971 to August 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2012 and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Although an August 2010 rating decision denied the Veteran's claim of entitlement to service connection for bilateral knee pain, the Board finds that new and material evidence has been submitted sufficient to reopen that claim. See January 2017 VA examination; May 2016 RO Hrg. Tr.; September 2012 VA examination. During the pendency of the appeal, in a December 2012 rating decision, the RO increased the evaluation for the Veteran's lumbar spine to 20 percent effective June 26, 2009. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been recharacterized as reflected on the title page. The issue of entitlement to service connection for a bilateral 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. In an August 2010 rating decision, the AOJ denied entitlement to service connection for a bilateral knee disability. The Veteran was notified of his appellate rights, but did not file a Notice of Disagreement within one year of the rating decision, or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the August 2010 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate entitlement to service connection for a bilateral knee disability. 3. A cervical spine disorder did not manifest during service and is not related to the Veteran's active service. 4. The Veteran's degenerative disc disease of the lumbar spine was productive of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there was no unfavorable ankylosis of the Veteran's spine. CONCLUSIONS OF LAW 1. The August 2010 rating decision denying the Veteran's service connection claim is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (2009). 2. New and material evidence has been received sufficient to reopen the claim for service connection for a bilateral knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. A cervical spine disorder was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 4. The criteria for an increased rating in excess of 20 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONs The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Law and analysis Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Arthritis is considered a chronic disease for VA compensation purposes. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303 (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed); see also Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (Board not required to discuss all of the evidence of record but must discuss relevant evidence). Lay evidence may be competent on a variety of matters concerning the nature and cause of a disability. Jandreau v. Nicholson, 492 F.3d 1372 at 1377 (Fed. Cir. 2007); see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has "rejected the view . . . that 'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis.'" (quoting Jandreau, 492 F.3d at 1377)). For example, a Veteran is competent to provide evidence about what he has experienced or observed. Layno v. Brown, 6 Vet.App. 465, 469 (1994). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, 492 F.3d at 1377. Once the threshold of competence is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. Competence must be distinguished from credibility. Competence is "a legal concept determining whether testimony may be heard and considered;" credibility is "a factual determination going to the probative value of the evidence to be made after the evidence has been admitted." Layno, 6 Vet.App. at 469. The Board must 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). In determining whether statements submitted by a veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet.App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden, 125 F.3d at 1481 (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Further, the Federal Circuit has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence. See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record."). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C. § 5107. A veteran 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. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996). In this case, the Veteran originally brought a claim stating that his neck disability was related to an in-service incident. See June 2009 VA Form 21-536; August 2011 notice of disagreement. However, since then the Veteran has stated that his neck disability is not related to service. Specifically, he stated that he injured himself in a fall that occurred while he was not in service. See September 2012 VA examination. In fact, the Veteran expressed his intent to withdraw his entitlement to service connection for a neck disability claim. However, the Board finds that the Veteran has not withdrawn his claim in compliance with 38 C.F.R. § 20.204. Thus, the Board will address the Veteran's entitlement to service connection for degenerative joint disease of the cervical spine. As noted above, as a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden, 381 F.3d 1163 (2004). Without all three of the elements present, the Board is unable to grant a veteran's claim. In this case, the existence of an in service disease or injury appears to be missing. The Veteran was originally provided a VA examination for his cervical spine disability in August 2010. At that examination, the examiner stated that the Veteran's cervical spine disability was permanently aggravated by the Veteran's service. Indeed, it appears as if the August 2010 VA examiner gave a positive nexus opinion for the Veteran's cervical spine disability. However, at that examination the Veteran reported that he began having neck pain about 20 years ago. Further, that he fell off of ladder and injured his neck. The Veteran has stated that the fall from his ladder brought to fruition the condition that was already documented in his military records. See August 2011 notice of disagreement. However, it appears as if the August 2010 was based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). As discussed, below the Veteran subsequently stated that he did not have any in-service injury to his neck. In that regard, the Veteran was scheduled for a September 2012 examination. At that examination, the Veteran stated that his cervical spine was not related to service, and that he injured himself while not in service. Further examination was not performed. Subsequently, the Veteran has not contended that the VA examination was inadequate or incorrect during the above appeal period. Nor is there any subsequent evidence of record that contradicts the findings of the September 2012 VA examiner during this period. The Board notes that the Veteran has had ample opportunity to disagree with the September 2012 VA examiner's findings regarding his neck disability; however, he has not done so. Notably, the Veteran and his representative did point out problems with the September 2012 VA examination regarding the Veteran's bilateral knee disability claim. See May 2016 RO Hrg. Tr. at 5. Accordingly, the Board concludes that service connection for a cervical spine disability is not warranted. Increase rating claim Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. The Veteran's service-connected degenerative disc disease, lumbar spine is rated at 20 percent, pursuant to the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5242, degenerative arthritis of the spine. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, General Rating Formula, Note 1. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note 2. Additionally, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). When assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an initial evaluation in excess of 20 percent is not warranted for a lumbar spine degenerative disc disease. VA treatment records document complaints of and treatment for chronic low back pain. The Veteran was first afforded a VA examination for his lumbar spine in August 2010. The Veteran reported that he had problems with grooming, chores, and exercising. Examination revealed forward flexion of the thoracolumbar spine to 70 degrees. The examiner noted that there was objective evidence of pain on active range of motion; however, there were no additional limitations after three repetitions or range of motion. Subsequent to that examination, the Veteran stated that his medications mask the true pain that he feels when examined. See August 2011 correspondence. Thus, the Veteran was afforded another VA examination for his lumbar spine degenerative disc disease in September 2012. At that examination, the Veteran reported daily pain, and that he takes medication for the pain. He did not report any flare-ups. The examiner noted that the Veteran regularly uses a cane. The September 2012 VA examination revealed forward flexion to 50 degrees, and objective evidence of painful motion began at 40 degrees. Similarly, repetitive testing revealed forward flexion to 50 degrees. The examiner noted that the Veteran did have additional limitation in motion of his spine following repetitive testing; specifically, that the Veteran had less movement than normal, and pain on movement. Further, the examiner noted that the Veteran did have IVDS of the thoracolumbar spine. However, that he had no incapacitating episodes over the past 12 months. The Veteran was afforded another VA examination in August 2017. The Veteran reported that over time he has had increasing problems with back pain and that he now has constant severe back pain that affects all of his activity. He further reported that he does not have any flare-ups, instead that he is in constant severe pain. The Veteran stated that he cannot sand for long, that he does not do any lifting, that lying in bed is painful, that he uses a scooter to get around, and that his wife helps him get dressed. The examiner noted that the Veteran regularly uses a cane, occasionally uses a walker, and constantly uses a scooter as assistance devices. The August 2017 VA examination revealed forward flexion limited to 60 degrees. The examiner noted that pain noted on examination and causes functional loss. The examiner further noted that there is evidence of pain with weight bearing. The Veteran was able to perform observed repetitive-use testing with at least three repetitions. Repetitive testing revealed forward flexion to 50 degrees. The examiner noted that pain and fatigue caused that functional loss. Importantly, examination showed that there was not ankylosis of the spine. The examiner noted that the Veteran does not have IVDS. Additionally, testing showed that there was objective evidence of pain during non-weight bearing exercises. That the passive range of motion was the same as active range of motion. Similarly, in compliance with the directives of Correia v. McDonald, 28 Vet. App. 158 (2016), pain on passive range of motion testing was the same as for active range of motion testing. See August 2017 VA examination, page 12. The Veteran has not contended that the VA examination was inadequate or incorrect during the above appeal period. Nor is there any evidence of record that contradicts the findings of the August 2017 VA examiner during this period. Moreover, while the September 2012 VA examination found that the Veteran had IVDS, and the August 2017 VA examination found that he did not have IVDS. There is no evidence showing that the Veteran was prescribed bed rest by any physician for his lumbar spine disability during the appeal period. As such, the Veteran has not been shown to have met the criteria for an increased evaluation under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board also notes that the Veteran is already in receipt of separate ratings for neurological abnormalities resulting from his lumbar strain. Indeed, he is service-connected for radiculopathy of both lower extremities. The evidence does not show, and he does not assert, that he has any other neurological abnormalities. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that an increased rating is warranted for the Veteran's low back disability; therefore, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 54-56. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. Specifically, the Veteran has reported that his back pain is a constant issue for him, and that it affects all of his activity. See August 2017 VA examination. However, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 20 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. Considering the results of the VA examinations in light of the Veteran's overall disability picture as shown in the record, including the reported flare-ups with pain, the disability does not more nearly approximate the criteria for the 30 percent evaluation. Thus, the Veteran is not entitled to a rating greater than 20 percent for his service-connected low back strain. The Board notes that that no other diagnostic codes provide a basis for any higher or additional ratings for the Veteran's lumbar spine disability. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Moreover, when a condition is specifically listed in the rating schedule it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an increase rating in excess of 20 percent for degenerative disc disease of the lumbar spine. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. ORDER 1. New and material evidence having been submitted, the claim for a bilateral knee disability is reopened. 2. Entitlement to service connection for degenerative joint disease, post op C5-C6 fusion, cervical spine is denied. 3. Entitlement to an increase evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. REMAND The Veteran was first afforded a VA examination in August 2010. At the first examination, the examiner noted that he did not have access to the Veteran's military service records for review. As a result, the examiner found that he could not resolve the Veteran's issue without resort to mere speculation. The Veteran was then afforded a VA examination for his bilateral knee disability in September 2012. At that examination, the examiner noted that the Veteran injured his knees while playing basketball in 1971 or 1972. The examiner ultimately opined that the Veteran's knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In so finding, the examiner stated that one incident of a knee contusion will not cause degenerative joint disease. Further, that there was no documentation in the Veteran's service treatment records of any injuries or otherwise that would have caused the bilateral knee disability. At the May 2016 RO hearing, the Veteran contended that the September 2012 VA examination was inadequate to decide the claim. In that regard, he appeared to testify that the VA examiner was biased against him. Further, the examination does not appear to be based on an accurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). As noted above, the examiner stated that one incident of a knee contusion will not cause the Veteran's knee disability. However, there are multiple in-service complaints of a knee injury. For instance, the Veteran's service treatment records (STRs) in November 1971, reflect that he hit his knee while playing basketball. In June 1972, it is reported that the Veteran had a knot on his knee, and noted that he was playing basketball. The Veteran was most recently afforded a VA examination for his bilateral knee disability in January 2017 by the same examiner that provided the September 2012 examination. Once again, the examiner noted that the Veteran's service treatment records and social security disability records showed that the Veteran had one incident where his knee was hit while playing in the service. The examiner ultimately found that the Veteran's bilateral knee disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the Board notes that the Veteran's service treatment records show an injury to his knee on more than one occasion. See November 1971 service treatment record; June 1972 service treatment record. Hence, the February 2017 VA examination also does not appear to be based on an accurate factual premise. Moreover, the examiner did not address the Veteran's lay statements as found in the October 2009 VA form 21-4138. Specifically, that the Veteran had to walk a half mile daily, and that the living conditions while in service contributed to his physical disabilities. Additionally, the Veteran has stated that this VA examiner is biased against him. See November 2017 correspondence. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his bilateral knee disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 2. The AOJ should obtain a VA opinion to determine the nature and etiology of the Veteran's bilateral knee disability. ANY VA EXAMINATION OR OPINION SHOULD BE CONDUCTED BY SOMEONE OTHER THAN THE SEPTEMBER 2012 AND JANUARY 2017 EXAMINER. Specifically, the examiner should opine as to whether it is at least as likely as not that the Veteran's bilateral knee disability manifested in service or is otherwise causally or etiologically related to his military service. The examiner is requested to review all pertinent records associated with the claims file, to include the Veteran's, post-service medical records, and lay assertions. As the last examiner did not, the examiner should note that the Veteran had multiple complaints concerning his knees while in service. SEE NOVEMBER 1971 SERVICE TREATMENT RECORD; JUNE 1972 SERVICE TREATMENT RECORD. The examiner should also address the Veteran's contention that had to walk a half mile daily, and that the living conditions while in service contributed to his physical disabilities. See October 2009 VA form 21-4138. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. 4. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 5. The AOJ should take any additional action as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). ______________________________________________ YVETTE R. WHITE. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs