Citation Nr: 1807981 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-15 005A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased disability evaluation for patellofemoral syndrome of the left knee, currently rated as 20 percent disabling. 2. Entitlement to an increased disability evaluation for laxity of the left knee, currently rated as 10 percent disabling. 3. Entitlement to an increased disability evaluation for limitation of flexion of the left knee, currently rated as 10 percent disabling. 4. Entitlement to an increased disability evaluation for limitation of extension of the right knee, currently rated as 10 percent disabling. 5. Entitlement to an increased disability evaluation for limitation of flexion of the right knee, currently rated as noncompensable. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for kidney cancer. 7. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a partial colectomy. 8. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder. 9. Entitlement to service connection for a low back disorder. 10. Entitlement to service connection for obstructive sleep apnea, including as secondary to service-connected knee disabilities. 11. Entitlement to service connection for headaches, including as secondary to service-connected knee disabilities. 12. Entitlement to service connection for residuals of a fracture of the left arm, including scar, including as secondary to service-connected knee disabilities. 13. Entitlement to service connection for vision loss of the left eye, including as secondary to service-connected knee disabilities. 14. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Kenneth H. Dojaquez, Attorney at Law WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1976 to November 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge at a September 2017 videoconference hearing at the RO. A transcript of the hearing has been included in the claims file. The issues of entitlement to increased disability ratings for right and left knee disabilities, entitlement to TDIU, and entitlement to service connection for obstructive sleep apnea, residuals of a fracture of the left arm, vision loss of the left eye, and headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed November 2007 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disorder. 2. In an unappealed February 2009 decision, the Board denied the Veteran's claims of entitlement to service connection for kidney cancer and partial colectomy. 3. The evidence received since the November 2007 Board decision as to the issue of entitlement to service connection for a low back disorder is relevant and probative of the issue at hand. 4. The evidence received since the February 2009 Board decision as to the issues of entitlement to service connection for kidney cancer and partial colectomy is cumulative in nature and repetitive of facts that were previously considered. 5. A low back disorder is not attributable to service. CONCLUSIONS OF LAW 1. The November 2007 Board decision denying the claim for service connection of a low back disorder is final. 38 U.S.C. §§ 5108, 7145; 38 C.F.R. § 20.1100 (2017). 2. The February 2009 Board decision denying the claims for service connection of kidney cancer and a partial colectomy is final. 38 U.S.C. §§ 5108, 7145; 38 C.F.R. § 20.1100 (2017). 3. New and material evidence has been received to reopen the claims of service connection for a low back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 4. New and material evidence has not been received to reopen the claims of service connection for kidney cancer and a partial colectomy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). 5. A low back disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's applications to reopen the previously denied claims of entitlement to service connection for kidney cancer, partial colectomy, and a low back disorder, and the downstream claims of entitlement to service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claims. As will be discussed below, the Veteran, the weight of the evidence demonstrates that there is no injury, disease, or event related to the Veteran's kidney cancer or partial colectomy during service. Therefore, any opinion would be speculative. As such, a remand to provide the Veteran with a medical examinations and/or to obtain a medical opinion is not necessary. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran was afforded a VA examination responsive to the claim for service connection of a low back disorder. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinion was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board also observes that the undersigned VLJ, at the Veteran's September 2017, explained the concept of new and material evidence to reopen a claim and the concept of service connection; the underlying evaluation process was also explained. Potential evidentiary defects were identified and the file was left open to provide an opportunity to submit additional evidence. The actions of the Judge supplement VCAA and comply with 38 C.F.R. § 3.103. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria to Reopen Service Connection In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The CAVC has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). The RO initially denied service connection for a low back disorder, kidney cancer, and a partial colectomy in a January 2005. The Veteran appealed, and in November 2007, the Board found that there was no evidence of a low back disorder which is etiologically related to service. In February 2009, the Board found that there was no evidence to show that the Veteran's kidney cancer and partial colectomy were etiologically related to his service. The Board decisions are final. See 38 U.S.C. § 7104(b). Low Back Disorder The November 2007 Board decision denied the Veteran's claim for service connection of a low back disorder on the basis that there was no evidence that the Veteran's had a current low back disorder which was incurred in service. The Board noted that the Veteran was treated in service for low back pain, and that the Veteran was treated again for complaints of low back pian in 1996. An October 2006 VA examination, however, indicated that there was no diagnosed disorder of the lumbar spine. Since the denial of the Veteran's claim for service connection of a low back disorder, the evidence submitted includes a January 2016 VA examination report, transcripts of the Veteran's testimony before the undersigned VLJ and a Decision Review Officer (DRO), VA treatment records, and private treatment records. The January 2016 VA examination report reflects that the Veteran was diagnosed with a lumbosacral strain. The evidence submitted subsequent to the November 2007 Board decision as to the issue of service connection for a low back disorder is new and material. The claim was previously denied on the basis that there was no evidence that the Veteran had treatment for or a diagnosis of a current low back disorder which was incurred in service. In essence, at the time of the prior decision, other than the claim, there was no evidence of a disability etiologically related to service. The added evidence speaks directly to an element which was not of record, mainly a current diagnosis of a low back disorder, namely lumbosacral strain. This evidence cures an evidentiary defect. See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006) (finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied"). Accordingly, the Board finds that the claim for service connection of a low back disorder is reopened. Kidney Cancer and Partial Colectomy The February 2009 Board decision denied the Veteran's claims for service connection of kidney cancer and partial colectomy the basis that there was no record of complaints, treatment, or diagnoses related to the Veteran's kidney cancer and partial colectomy during service, and no evidence that his kidney cancer and partial colectomy were related to service; the Board found that there is no competent clinical evidence that relates the Veteran's kidney cancer or partial colectomy to his military service. The Board noted that the medical evidence of record shows that the Veteran was diagnosed with kidney cancer in 1995 and that his partial colectomy occurred subsequent to his 1995 nephrectomy, and, because the Veteran was not being granted service connection for his kidney cancer, he could not be service-connected for a partial colectomy. The Board also noted that the Veteran's claims of chemical exposure during his period of active duty were not supported by the evidence of record and that the October 2006 VA examiner found that the Veteran's long-term alcohol abuse and cigarette smoking are also significant risk factors for kidney cancer. Since the February 2009 Board decision, the Veteran has raised an additional theory of entitlement. The Veteran contends that his kidney disorder and partial colectomy are related to injuries from a 2004 fall from a ladder; the Veteran contends that the fall is causally related to his service-connected left knee disabilities. However, the United States Court of Appeals for Veterans Claims (Court) has held that basing a claim for service connection on a new theory of etiology does not constitute a new claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Consequently, although the Veteran has raised a new theory of entitlement, he is nonetheless required to submit new and material evidence to reopen the claims for service connection. Evidence received since the February 2009 Board decision includes transcripts of the Veteran's testimony before the undersigned VLJ and a Decision Review Officer (DRO), VA treatment records, and private treatment records. The evidence submitted subsequent to the February 2009 Board decision as to the issues of service connection for kidney cancer and partial colectomy is not new and material. Neither the VA nor private treatment records demonstrate that the Veteran's kidney cancer and partial colectomy are related to the Veteran's service. At the time of the prior decisions, there was no medical evidence indicating that the Veteran's kidney cancer and/or partial colectomy were causally or etiologically related to his service. This has not changed; the Veteran has not provided any new and material evidence demonstrating that his kidney cancer and/or partial colectomy are due to a disease or injury during service, including a service-connected disability. Similarly, the lay statements are only new in that the Veteran is attempting to advance a new theory of entitlement; such statements, however, are not material. In sum, the evidence submitted as to the Veteran's claims of service connection for kidney cancer and a partial colectomy is cumulative rather than new and material. Although the threshold for reopening a claim is low, the evidence presented in this case does not serve to reopen these claims. Service Connection Initially, the Board notes that there is no prejudice to the Veteran in the Board adjudicating his reopened claim of entitlement to service connection for a low back disability without remanding to the RO. The Board notes that the Veteran addressed this issue in hearings both before the RO and the Board, he was provided a VA examination as to service connection for his low back disability, and all relevant and identified evidence has been obtained. Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (holding that when the Board addresses a question not addressed by the RO, "it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby"). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of 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. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. A May 1980 service medical record noted that the Veteran complained of low back pain after lifting a heavy object; range of motion was good, and the assessment was "myo-strain." The Veteran denied experiencing recurrent back pain on the Medical History portion of his June 1980 separation examination, and the Veteran's spine was clinically evaluated as normal at the contemporaneous separation examination. A December 1996 private medical record noted that the Veteran complained of discomfort of the lumbosacral spine. The examiner described the back pain as a minor discomfort, and there was no assessment related to the lumbar spine. At an October 2006 VA spine examination, the Veteran complained of a mild, non-radiation back pain. X rays were negative, and, following examination of the Veteran's spine, the examiner indicated that the objective data did not support a diagnosis of the lumbar spine disability. The Veteran was afforded another VA examination in January 2016. At that time, the Veteran was diagnosed with lumbosacral strain. The VA examiner noted that the Veteran asserted that his low back disorder was related to his service-connected right and left knee disabilities, but nonetheless found that the Veteran's lumbosacral strain was not likely related to the Veteran's service-connected right and left knee disabilities. The VA examiner explained that, when chronic knee pain produces secondary pain in adjacent locations, the pain typically presents in a continuous pattern. If the Veteran's back pain was due to or the result of the pain from the Veteran's service-connected knee disabilities, the Veteran would have had hip pain which presented prior to the onset of his low back pain; no such hip pain is demonstrated. The Veteran's claim of entitlement to service connection for a low back disorder must be denied. In this case, there is no evidence of a low back disorder during active duty. The Board acknowledges that the Veteran was treated for low back pain on one occasion in service, but points out that his medical history does not reflect that he had any other complaints related to his back during service; his separation examination report was normal. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). The Veteran is competent to report that he has been treated for and diagnosed with a low back disorder, and such statements are confirmed by the record. In addition, he is competent to report when his low back disorder was first identified. However, he is not competent to diagnose a low back disorder or provide a nexus between any back symptoms or diagnoses and his active service; doing so requires specific medical training and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the evidence reflects that the Veteran's low back disorder is unrelated to his service, including his service-connected right and left knee disabilities. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board finds that the probative value of the general lay assertions are outweighed by the specific, reasoned opinion of the January 2016 VA examination report, as well as the clinical evidence of record. In this regard, the Board points out that the January 2016 VA examiner clearly concluded that the Veteran's lumbosacral strain was not related to the Veteran's service or a service-connected disability. In particular, the January 2016 VA examination report indicates that the Veteran's service-connected right and left knee did not cause or aggravate the Veteran's lumbosacral strain. The Court has held that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the Board points out that the opinions of the VA examiner was specific, well-reasoned, and based on review of the record and consideration of the Veteran's assertions. The VA examiner found that the Veteran's current lumbosacral strain did not have onset during service and was unrelated to any event, illness, or injury in service, as well as unrelated, by means of causation or aggravation, to the Veteran's service-connected right and left knee disabilities. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). For the foregoing reasons, the preponderance of the evidence is against the claim of service connection for a low back disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER The application to reopen the claim for service connection of kidney cancer is denied. The application to reopen the claim for service connection of partial colectomy is denied. The application to reopen the claim for service connection of a low back disorder is granted. Entitlement to service connection for a low back disorder is denied. REMAND The Board acknowledges that the Veteran was most recently afforded a VA examination in January 2016, in connection with his claims for increased disability ratings for his service-connected right and left knee disabilities. However, the Veteran asserts that the symptoms of his service-connected right and left knee disabilities are more severe than presently evaluated. The Board also observes that Veteran testified at his September 2017 hearing before the undersigned that his symptoms have worsened since his most recent VA examinations; the Veteran indicated that he had a tear of the right knee meniscus as well as an additional left knee disability. As such, the Board finds that the Veteran should be afforded a new VA examination in order to accurately evaluate the current severity of his service-connected right and left knee disabilities. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, the Board observes that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the CAVC's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the most recent, January 2016 VA examination reports reveal that range of motion testing for the right leg/ knee and left leg/knee in active and passive motion, weight-bearing, and nonweight-bearing situations was not conducted. In light of Correia, the Veteran must be provided a new VA examination, which provides range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the Veteran's right leg/ knee and left leg/knee. The Veteran also asserts that he has obstructive sleep apnea, headaches, residuals of a fracture of the left arm including a scar, and left eye vision loss related to service. According to the Veteran's testimony before the undersigned, his current residuals of a fracture of the left arm, headaches, and loss of vision of the left eye are the result of injuries related to falls from a ladder in 1995 (left arm) and 2004 (loss of vision, headaches); the Veteran contends that the falls were due to the Veteran's service-connected left knee disabilities, and thus his residuals of a left arm fracture, headaches, and loss of vision in the left eye should be service-connected as proximately due to or the result of his service-connected left knee disabilities. However, the VA neurological examiner did not provide a diagnosis or etiology opinion as to the Veteran's headaches and loss of vision of the left eye. The Veteran also contends that his service-connected left and right knee disabilities have created physical limitations which led to weight gain, which in turn caused his obstructive sleep apnea. The Board observes that the Veteran has been provided with a VA sleep apnea examination; however, the VA sleep apnea examiner did not adequately address the Veteran's theory of entitlement. Therefore, new VA examinations should be scheduled to determine the nature and etiology of the Veteran's claimed obstructive sleep apnea, headaches, and vision loss of the left eye. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). A probative medical opinion should be based on an accurate factual premise. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). Moreover, the Veteran has not yet been afforded a VA examination as to the claim of entitlement to service connection for residuals of a left arm fracture, including a scar. Accordingly, the Board finds that the Veteran should be afforded a VA examination regarding the claim for service connection of residuals of a fracture of the left arm, including scar. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Given that additional development is required as to the Veteran's claims for service connection and for increased disability ratings for his service-connected right and left knee disabilities, the Board finds that a decision on the remaining issue of entitlement to TDIU must be deferred to allow the RO the opportunity to evaluate the Veteran's service-connected right and left knee disabilities, as well as to adjudicate the claims for service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Furthermore, VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Any remaining, available VA treatment should be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to obtain and associate with the record copies of the Veteran's VA treatment records, if any, associated with the claims on appeal for the rating period on appeal. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected right and left knee disabilities. The claims file should be made available to the examiner for review in connection with the examination. The examination should include a statement as to the effect of the Veteran's service-connected right and left knee disabilities on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the right and left knees in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. 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 VA examiner should provide a complete rationale for any opinions provided. 3. The Veteran should be afforded an appropriate VA examination(s) in order to determine the nature and etiology of any obstructive sleep apnea, headaches, residuals of a fracture of the left arm including scar, and loss of vision of the left eye that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The VA examiner should identify any current obstructive sleep apnea, headaches, residuals of a fracture of the left arm including scar, and loss of vision of the left eye and provide an opinion as to whether it is as least as likely as not (50 percent probability or more) that any identified obstructive sleep apnea, headaches, residuals of a fracture of the left arm including scar, and loss of vision of the left eye are related to any event, illness, or injury during service. If the Veteran's identified obstructive sleep apnea, headaches, residuals of a fracture of the left arm including scar, and loss of vision of the left eye are not related to any event or injury during service, the VA examiner should provide an opinion as to whether any identified obstructive sleep apnea, headaches, residuals of a fracture of the left arm including scar, and loss of vision of the left eye are proximately due to or the result of the service-connected right and left knee disabilities. The VA examiner should specifically address the Veteran's assertions that his obstructive sleep apnea is due to weight gain as a result of limitations due to his service-connected knee disabilities. The VA examiner should also specifically address the Veteran's assertions that his headaches, residuals of a fracture of the left arm, and vision loss of the left eye are related to falls from a ladder in 1995 and 2004 which he asserts occurred as a result of his service-connected knee disabilities. The provider is advised that the Veteran is competent to report symptoms, treatment, and diagnoses and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinion. A complete rationale, with specific reference to the relevant evidence of record, should accompany each opinion provided. 4. After completing all indicated development, the RO should readjudicate the claims for service connection, increased disability ratings, and TDIU, on appeal, in light of all the evidence of record. If any of the benefits sought remain denied, the case should be returned to the Board after compliance with requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs