Citation Nr: 1806126 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 07-25 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for asthma (also claimed as respiratory condition) as a result of exposure to herbicides. 3. Entitlement to service connection for recurring foot fungus, bilateral, also claimed as a result of exposure to herbicides. 4. Entitlement to service connection for diabetes mellitus II (DM), also claimed as a result of exposure to herbicides. 5. Entitlement to service connection for a right foot condition, also claimed as secondary to the service-connected right knee disorder. 6. Entitlement to service connection for right leg muscle condition, also claimed as secondary to the service-connected right knee disorder. 7. Entitlement to service connection for residuals s/p brain tumor removal, also claimed as secondary to exposure to herbicides. 8. Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder. 9. Whether new and material evidence has been received to reopen the claim of service connection for degenerative disc disease, lumbar spine (claimed as lower back condition) as secondary to the service-connected right knee disorder. 10. Whether new and material evidence has been received to reopen the claim of service connection for degenerative disc disease, spondylosis, cervical spine (claimed as neck condition) as secondary to the service-connected disability right knee disorder. 11. Entitlement to temporary 100 percent evaluation based on hospitalization and convalescence for brain tumor removal surgery. 12. Entitlement to an effective date earlier than November 28, 2005 for initial grant of service connection of chondromalacia patella, right knee. REPRESENTATION Appellant represented by: Marc D. Pepin, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1971 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating determinations of a Regional Office of the Department of Veterans Affairs (VA). In January 2017, the Veteran appeared at a videoconference hearing before the undersigned Veteran Law Judge. A transcript of the hearing is of record. With regard to the issues of service connection for cervical and lumbar spine disorders, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim]. Therefore, the Board has listed the issues as such on the title page of this decision. The issues of entitlement to service connection for asthma (also claimed as respiratory condition) as a result of exposure to herbicides; entitlement to service connection for recurring foot fungus, bilateral, also claimed as a result of exposure to herbicides; entitlement to service connection for DM, also claimed as a result of exposure to herbicides; entitlement to service connection for a right foot condition, also claimed as secondary to the service-connected disability right knee disorder; entitlement to service connection for right leg muscle condition, also claimed as secondary to the service-connected right knee disorder; entitlement to service connection for residuals status post brain tumor removal, also claimed as secondary to exposure to herbicides; entitlement to service connection for a psychiatric disorder, to include PTSD; and entitlement to temporary 100 percent evaluation based on hospitalization and convalescence for brain tumor removal surgery; are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran currently has tinnitus. 2. The Veteran's tinnitus is related to service. 3. The RO denied service connection for degenerative disc disease of the lumbar spine in an August 2006 rating determination. The Veteran was notified of this decision that same month and did not appeal this decision within the proscribed time period nor was any evidence received within the one year period which would have allowed the claim to remain open. 4. Evidence received since the August 2006 decision denying service connection for degenerative disc disease of the lumbar spine is duplicative or cumulative in nature and does not relate to an unestablished fact necessary to substantiate the claim. 5. The RO denied service connection for degenerative disc disease and spondylosis of the cervical spine in an August 2006 rating determination. The Veteran was notified of this decision that same month and did not appeal this decision within the proscribed time period nor was any evidence received within the one year period which would have allowed the claim to remain open. 6. Evidence received since the August 2006 decision denying service connection for degenerative disc disease of the cervical spine and spondylosis is duplicative or cumulative in nature and does not relate to an unestablished fact necessary to substantiate the claim. 7. The Veteran had active service from March 1971 to April 1972. 8. The Veteran's claim for service connection for a right knee disorder was received by VA on November 28, 2005. 9. A claim for service connection for a right knee disorder was not received within one year of service separation. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The August 2006 rating determination denying service connection for degenerative disc disease of the lumbar spine is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. New and material evidence sufficient to reopen the claim of entitlement to service connection for degenerative disc disease of the lumbar spine has not been received. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 4. The August 2006 rating determination denying service connection for service connection for degenerative disc disease of the cervical spine and spondylosis is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 5. New and material evidence sufficient to reopen the claim of entitlement to service connection for degenerative disc disease of the cervical spine and spondylosis has not been received. 38 U.S.C. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). 6. The criteria for an effective date prior to November 28, 2005, for the award of service connection for a right knee disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Tinnitus Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service 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); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). Here, tinnitus is considered a chronic disease for the purpose of applying 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) applies to the Veteran's claim for service connection for tinnitus. The Veteran contends that service connection is warranted for tinnitus as he was exposed to hazardous noises while in the service during training, to include as a result of having received the sharpshooter's badge, demonstrating that he was exposed to rifle noise, and from being a Morse code operator. He maintains that service connection is warranted for tinnitus based upon his in-service noise exposure. Service treatment records do not reveal any complaints or findings of tinnitus in service. The Veteran also did not complain of ear problems on his April 1972 service separation examination. In conjunction with his claim, the Veteran was afforded a VA examination in July 2013. At the time of the examination, the examiner indicated that the Veteran was crypto-exposed to radios, shooting, and tanks with no use of ear protection. Post-military, the Veteran worked in construction for 20 years and did not wear ear protection. It was noted that the Veteran reported the onset of tinnitus following range exposure. The examiner indicated that while there was no documentation of tinnitus in the Veteran's service treatment records, based upon his reported history of significant noise exposure in service and after service, it was not possible to determine if the tinnitus was related to military noise exposure without resorting to mere speculation. At the time of his January 2017 hearing, the Veteran testified that he had tinnitus in both ears. He attributed it to being around weapons fire, mortar fire, and tank fire. He stated he was exposed to these noises on a daily basis. He further indicated that he was on the firing range quite a bit and that he had received the sharpshooter's badge. The Veteran stated that following service he worked in his father's business in the commercial janitorial service. He reported that his job was to check up on fellow employees and that he was not exposed to any long-term noise. He stated that the tinnitus had developed in service and had been continuous since that time. The Veteran testified that he never knew what tinnitus meant only that he knew he had ringing in his ears. The Veteran is competent to describe being exposed to loud noise and is competent to describe observable symptoms such as ringing in the ears as these are observable symptoms. See Jandreau v. Nicholson, 492 F.3d at 1376-77; Charles v. Principi, 16 Vet. App. at 374 (a veteran is competent to testify that he experienced ringing in his ears in service and had experienced ringing in his ears ever since service). The Veteran's lay statements regarding exposure to noise as a Morse Code Operator and weapons fire are found to be credible to the extent that they have been internally consistent and are also consistent with the circumstances of his service. The Board finds that tinnitus was incurred in and is attributable to service. The Veteran has provided credible evidence of in-service acoustic trauma, he has stated that he experienced symptoms during service, and he has endorsed symptoms of tinnitus since service. The VA examiner's opinion is neither for nor against the Veteran's claim. As such, the evidence demonstrates credible evidence of in-service acoustic trauma, in-service onset of ringing in the ears and unremitting tinnitus since service, and that the Veteran currently has tinnitus. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. New and Material 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. Lumbar Spine The RO denied service connection for degenerative disc disease of the lumbar spine in August 2006. In denying service connection for a lumbar spine disorder, the RO observed that the Veteran's separation examination, dated April 1972, noted that he reported back trouble. It was indicated that x-rays were normal. The RO observed that private treatment records, dated March 1997, showed that the Veteran was seen for back pain. It was noted that the Veteran had a history of a motor vehicle accident in 1995 with back problems since that time. The RO also observed that in September 2002, the Veteran was seen for back pain after injuring his back while lifting. In August 2003, it was noted that the Veteran reported that he hurt his back after lifting patients all day. In September, 2003, a diagnosis of lumbar degenerative disc disease was shown. The RO indicated that although the Veteran reported back trouble during military service, in the absence of a chronic low back condition during military service or evidence of degenerative disc disease of the lumbar spine within one year of separation from service together with current evidence of a chronic diagnosed low back condition related to military service, service connection on a direct basis was not warranted. Additionally, in the absence of evidence showing that the current low back condition was related to his service-connected chondromalacia patella, right knee, service connection on a secondary basis was not warranted and the claim was denied. The Veteran was notified of this decision later that month; he did not appeal this decision within the proscribed time period nor was any evidence received within the one year period which would have allowed the claim to remain open. Thus, the decision became final. Evidence available at the time of the prior denial included the Veteran's treatment records, statements from the Veteran relating his low back disorder to service and/or his right knee disorder, and private treatment records showing a history of back injuries following service. Evidence received subsequent to the August 2006 denial includes the statements and testimony from the Veteran as to his belief that his current low back disorders started in service and/or are related to his service-connected right knee disorder and the results of a September 2014 VA examination. The statements of the Veteran as to his belief that his current low back disorder had its onset in service and had continued since his period of service, or in the alternative, were caused or aggravated by his service-connected right knee disorder are cumulative of information and beliefs that were available at the time of the prior decision and are essentially duplicative and cumulative in nature. Moreover, the September 2014 VA examiner, following a review of the record and examination of the Veteran, indicated that it was less likely that the Veteran's lumbar spine degenerative disc disease was proximately due to or the result of or was aggravated by the Veteran's service-connected right knee disorder. As rationale, the examiner indicated that the Veteran stated that his low back pain started at the same time as his right knee, not the right knee and later the low back. The examiner further indicated that although the Veteran had a slight limp on the right from the TKR, there was nothing significant biomechanically that would have the low back causally related to the right knee. Thus, the additional medical evidence also does not raise the possibility of substantiating the claim. The Board finds that the additional evidence of record received since the August 2006 rating determination is cumulative and redundant, or does not tend to relate the current low back problems to service or the service-connected right knee disorder. As such, the Board finds that the additional evidence is not material and does not relate to an unestablished fact necessary to substantiate the claim; therefore, the application to reopen the claim is denied. Cervical Spine The RO denied service connection for a cervical spine disorder in August 2006. In denying service connection for a cervical spine disorder the RO noted that the Veteran's service treatment records did not show that he was treated for a neck condition during military service. Private treatment records dated March 1998 showed a diagnosis of cervical spondylosis, and a diagnosis of degenerative disc disease was shown in January 2002. The RO indicated that in the absence of a chronic neck condition during military service or degenerative disc disease within one year of separation from service together with current evidence of a chronic diagnosed neck condition related to military service, service connection on a direct basis was not warranted. Additionally, in the absence of evidence showing that that his current neck condition was related to the service-connected chondromalacia patella, right knee, service connection on a secondary basis was not warranted and the claim was denied. Evidence available at the time of the prior denial included the Veteran's treatment records, statements from the Veteran relating his cervical spine disorder to service and/or his right knee disorder, and private treatment records showing diagnoses of cervical spine degenerative disc disease and spondylosis. Evidence received subsequent to the August 2006 denial include statements and testimony from the Veteran as to his belief that his current cervical spine disorders started in service and/or are related to his service-connected right knee disorder. The statements of the Veteran as to his belief that his current cervical spine disorder had its onset in service and had continued since his period of service, or in the alternative, were caused or aggravated by his service-connected right knee disorder are cumulative of information and beliefs that were available at the time of the prior decision and are essentially duplicative and cumulative in nature. The Board finds that the additional evidence of record received since the August 2006 rating determination is cumulative and redundant, or does not tend to relate the current cervical spine problems to service or the service-connected right knee disorder. As such, the Board finds that the additional evidence is not material and does not relate to an unestablished fact necessary to substantiate the claim; therefore, the application to reopen the claim is denied. EED The Veteran asserts that an effective date earlier than November 28, 2005, is warranted for the award of service connection for a right knee disorder. On November 28, 2005, the Veteran requested service connection for a right knee disorder. His claim was date stamped as having been received by the RO on this date. The record is devoid of any documentation dated prior to the November 2005 request which may be reasonably construed as a claim for service connection for a psychiatric disorder. The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Title 38 of the Code of Federal Regulations clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the Veteran's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). A right knee disorder has been shown to have originated during active service. Therefore, the question to be determined is the date of receipt of the Veteran's claim for service connection for a right knee disorder. The Veteran's claim for service connection was received by VA on November 28, 2005. As the claim was not received within one year of separation from service in April 1972, the appropriate effective date for the award of service connection for a right knee disorder is November 28, 2005, the date of receipt of the claim for service connection for a right knee disorder. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b)(2)(i). The pertinent legal authority governing assignment of effective dates is clear and specific. In this case, the undisputed facts show that the Veteran separated from active service in April 1972; did not file a claim for service connection for a right knee disorder within one year of service separation; and initially filed a claim for service connection for a right knee disorder, which was received by VA on November 28, 2005. The applicable law and regulation provide that the proper effective date for the grant of service connection is the date of receipt of the claim. 38 C.F.R. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). As the earliest effective date legally possible has been assigned, the instant appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board concludes that an effective date prior to November 28, 2005, for the award of service connection for a right knee disorder is not warranted. ORDER Service connection for tinnitus is granted. New and material evidence not having being received, the petition to reopen the claim of service connection for a low back disorder, to include degenerative disc disease of the lumbar spine, is denied. New and material evidence not having being received, the petition to reopen the claim of service connection for a cervical spine disorder, to include degenerative disc disease and spondylosis of the cervical spine, is denied. An effective date prior to November 28, 2005, for the award of service connection for a right knee disorder is denied. REMAND As it relates to the Veteran's claim of service connection for PTSD, the Board notes that at the time of his January 2017 hearing, the Veteran testified as to having been assaulted by a group of men in service and not reporting it due to wanting to avoid condemnation and harassment for reporting it. The United States Court of Appeals for the Federal Circuit has observed that 38 C.F.R. § 3.304 (f)(5) (2017) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 683 F.3d 1379 1382 (Fed. Cir. 2011) (observing that the United States Court of Appeals for Veterans Claims erred when it determined that a medical opinion based on a post-service examination of a veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' " in personal-assault cases). When a veteran's claim is based, at least in part, on reported in-service personal assault/harassment, VA has a heightened notification obligation whereby it must (1) notify him or her of alternative forms of evidence that may serve to corroborate his or her account, to include the opinion of a medical professional, (2) suggest other potential sources of evidence, and (3) assist the veteran in submitting evidence from alternative sources by providing additional time for such submission after an adequate notice letter has been provided. See 38 C.F.R. § 3.304(f)(5); see also Menegassi; Gallegos v. Peake, 22 Vet. App. 329 (2008). The Board acknowledges that the Veteran has not been provided notification of the evidence that may be submitted in support of a claim for service connection for PTSD based upon personal assault. As a remand is otherwise required in this case, the Board finds that the Veteran should be provided with additional notification and opportunity to provide information regarding the reported in-service assault. As it relates to the claims of service connection for DM, a brain tumor, asthma, and foot fungus, the Veteran maintains that these disabilities arise as a result of exposure to Agent Orange while in service. The Veteran maintains that in addition to having been exposed to Agent Orange as result of having been in Vietnam, which the Board does not concede, he was also exposed to Agent Orange while stationed at Ft. Ord in California and Ft. Gordon in Georgia. The VA Adjudication Procedure Manual provides a table detailing the steps the AOJ must take to verify herbicide exposure on a factual basis in locations other than the Korean DMZ or Vietnam. See M21-1, Part IV.ii.1.H.7.a. According to this provision, the AOJ must follow particular steps in order to determine whether herbicide agents were used as claimed, including asking the Veteran the approximate dates, location, and nature of the alleged herbicide exposure. If the Veteran responds, the AOJ must send an e-mail inquiry to Compensation Service at the Agent Orange Mailbox (VAVBAWAS/CO/211/ AGENTORANGE) to secure a copy of the Department of Defense Inventory listing all herbicide use, storage, and testing sites. Finally, if either the Veteran or any SPRs that are obtained provide sufficient information to require an additional Joint Services Records Research Center (JSRRC) search, the AOJ should send a request to the JSRRC for verification of exposure to herbicide agents. As it relates to his right knee, the Veteran testified as to worsening conditions in his right knee since the time of the last examination, which occurred in May 2012. Moreover, the United States Court of Appeals for Veterans' Claims (Court) has recently held that 38 C.F.R. § 4.59 (2017) creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. A review of the evidence of record reveals that these prior examinations regarding the Veteran's service-connected right knee fail to fully comply with the Court's holding in Correia. As such, remand is required to obtain an adequate examination regarding the Veteran's service-connected right knee. See Id.; see also Barr, 21 Vet. App. 303. As it relates to his right leg muscle and right foot claim, the Veteran has testified that his right foot and right leg muscle conditions are related to his period of service, or, in the alternative, arise as a result of his service-connected right knee disorder. To date, the Veteran has not been afforded a VA examination to determine the etiology of any current right leg muscle or right foot disorder. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, at 448 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). To establish secondary service connection, the law states that there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As such, a VA examination is warranted. As it relates to the claim of entitlement to a temporary 100 percent evaluation based on hospitalization and convalescence for brain tumor removal surgery, the Board finds that this matter is inextricably intertwined with the issue of service connection for a brain tumor. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Send the Veteran a notification letter informing him of the information and evidence required to substantiate a PTSD claim based on an in-service personal assault in accordance with 38 U.S.C. § 5103(a) (West 2014), 38 C.F.R. § 3.159(b) and 38 C.F.R. § 3.304(f)(5) (2017). In particular, the notice must advise the Veteran that evidence from sources other than his service records and evidence of behavior changes may constitute credible supporting evidence of the in-service stressor. He should also be requested to provide additional details regarding the reported in-service stressor(s). 3. Following completion of the above, the Veteran should be afforded a VA mental disorders examination to evaluate the current nature and etiology of his psychiatric disorder(s). The Veteran's claims file should be made available to the examiner for review in connection with the examination. The examiner is requested to provide responses to each directive below. (a) For each current acquired psychiatric diagnosis, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the disorder began in service or is otherwise related to a disease, injury or stressor in service, to include the purported in-service personal assault. (b) If the Veteran has a current diagnosis of PTSD, the examiner must state whether or not an in-service stressor is sufficient to support the diagnosis of PTSD and identify the stressor(s). The examiner should take into consideration the statements made by the Veteran, to include his hearing testimony, and alleged reported stressors. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The AOJ should ask the Veteran to identify the approximate date(s), location(s), and the nature and circumstance(s) of his alleged exposure to herbicide agents in service. Once the Veteran's SPRs and his responses to exposure have been obtained, the AOJ should arrange for exhaustive development to verify whether the Veteran's service placed him in circumstances where he would have been exposed to herbicide agents. Then the AOJ should make a formal finding for the record as to whether or not the Veteran served somewhere in service where herbicide agents were used. The Veteran should be advised of the determination. Such development includes, but is not limited to, the following: send a detailed statement of the Veteran's claimed exposure to herbicide agents to the Compensation Service via e mail at VAVBAWAS/CO/211/AGENT ORANGE, and request a review of the inventory of herbicide operations maintained by the DoD to determine whether herbicides were used or stored as alleged. If the exposure is not verified, a request should then be sent to the JSRRC for verification of exposure to herbicides. Such development must be documented and associated with the record. 5. Schedule the Veteran for a VA examination to determine the etiology of any right foot and right leg muscle disorder as well as the severity, manifestations, and effects of his service-connected right knee disability. The examiner must review the claims file in conjunction with the examination. As it relates to the right knee, the examiner must specifically test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both right and left knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also comment on instability or subluxation, and, if present, whether it is slight, moderate, or severe in nature. As to the TKR, the examiner is to comment on whether the Veteran has chronic residuals consisting of severe painful motion or weakness in the affected extremity or intermediate degrees of residual weakness, pain or limitation of motion. Additionally, the examiner should clearly document any functional impairment as a result of the Veteran's service-connected right knee disability. As to the right foot, the examiner is to note all current right foot disorders. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current right foot disorder is etiologically related to the Veteran's period of service? If not, is it as likely as not (50 percent probability or greater) that any current right foot disorder is caused by the service-connected right knee disorder? If not, is it at least as likely as not (50 percent probability or greater) that any current right foot disorder is aggravated by the service-connected left right knee disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. As to any right leg muscle disorder, the examiner is to identify any right leg muscle disorder. The examiner is requested to offer the following opinions: Is it as likely as not (50 percent probability or greater) that any current right leg muscle disorder is etiologically related to the Veteran's period of service? Is it as likely as not (50 percent probability or greater) that any current right leg muscle disorder is caused by the service-connected right knee disorder? If not, is it at least as likely as not (50 percent probability or greater) that any current right leg muscle disorder is aggravated by the service-connected left right knee disorder? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for any opinion that is rendered. 6. Review the claims file. If any of the above development is incomplete, including if the examination report does not contain sufficient information to respond to the questions posed, to include the Court's holding in Correia as it relates to the right knee, take corrective action before readjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After undertaking any other development deemed appropriate, the AMC/RO should readjudicate the remaining claims on appeal. If any benefit sought is not granted, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The appellant 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 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs