Citation Nr: 21067067 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-10 351 DATE: November 3, 2021 ORDER The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected bilateral lower extremity scars is dismissed. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected traumatic brain injury is dismissed. The Board having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for bilateral hearing loss disorder, is granted. The claim is granted to this extent only. The Board having determined that new and material evidence has been received, concludes that reopening of the claim of entitlement to service connection for a left knee disorder, is granted. The claim is granted to this extent only. REMANDED The appeal as to the claim of entitlement to service connection for bilateral hearing loss disorder, to include as secondary to the service-connected tinnitus disability, is remanded. The appeal as to the claim of entitlement to service connection for a left knee disorder, to include as secondary to the service-connected left lower extremity compartment syndrome and/or right lower extremity compartment syndrome, is remanded. The appeal as to the claim of entitlement to service connection to a right foot disorder, to include as secondary to the service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome, is remanded. The appeal as to the claim of entitlement to service connection to a left foot disorder, to include as secondary to the right lower extremity compartment syndrome and/or left lower extremity compartment syndrome, is remanded. The appeal as to the claim of entitlement an initial evaluation in excess of 10 percent for service-connected right leg compartment syndrome is remanded. The appeal as to the claim of entitlement an initial evaluation in excess of 10 percent for service-connected left leg compartment syndrome is remanded. The appeal as to the claim of entitlement to an initial compensable evaluation for service-connected migraine headache disability is remanded. The appeal as to the claim of entitlement an evaluation in excess of 50 percent for service-connected acquired psychiatric disability, is remanded. The appeal as to the claim of entitlement to an effective date earlier than February 2, 2018, for the grant of an increased 50 percent evaluation for service-connected acquired psychiatric disorder. FINDINGS OF FACT 1. During his November 2020 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, stated on the record that he desired to withdraw his appeal for the issues of entitlement to an initial compensable evaluation for service-connected bilateral lower extremity scars, and entitlement to an evaluation in excess of 10 percent for service-connected brain disease. 2. An August 2014 rating decision denied the claim to reopen entitlement to service connection for a bilateral hearing loss disorder; the Veteran did not appeal the decision and it became final. 3. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral hearing loss disorder. 4. An January 2015 rating decision denied the claim to reopen entitlement to service connection for a left knee disorder; the Veteran did not appeal the decision and it became final. 5. Evidence subsequently received is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a left knee disorder. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to an initial compensable rating for service-connected bilateral lower extremity scars, have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2020). 2. The criteria for withdrawal of the appeal of entitlement to a rating in excess of 10 percent for service-connected brain disease have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2020). 3. The August 2014 rating decision that denied the claim of entitlement to service connection for a bilateral hearing loss disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 4. New and material evidence has been presented to reopen a claim of entitlement to service connection for a bilateral hearing loss disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). 5. The January 2015 rating decision that denied the claim of entitlement to service connection for a left knee disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2020). 6. New and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from February 2000 to January 2004, and from June 2004 to March 2005. His service was under honorable conditions. The matters are on appeal from December 2017 and June 2018 rating decisions. In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A written transcript of this hearing has been prepared and associated with the evidence of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial compensable rating for bilateral lower extremity scars. See argument Below at 2 2. Entitlement to an initial rating in excess of 10 percent for service-connected brain disease. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During his November 2020 Board hearing, the Veteran, through his attorney, explicitly and unambiguously indicated that he wished to withdraw his appeal as to the issues of entitlement an initial compensable evaluation for service-connected bilateral lower extremity scars, and entitlement to an evaluation in excess of 10 percent for service-connected brain disease. See November 2020 Hearing Transcript at 4. After the representative asked to withdraw the issues and the Veteran affirmed, the remaining issues on appeal were taken one-by-one for discussion, with no mention of Veteran's claim of entitlement to an initial compensable evaluation for service-connected bilateral lower extremity scars, or entitlement to an evaluation in excess of 10 percent for service-connected brain disease. Accordingly, the Board finds the Veteran's verbal withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of withdrawal. DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the Veteran has withdrawn his appeal, there remains no allegation of error of fact or law for appellate consideration. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Accordingly, the appeal as to the issues of entitlement to an initial compensable evaluation for service-connected bilateral lower extremity scars, and entitlement to an evaluation in excess of 10 percent for service-connected brain disease, are dismissed. New and Material Evidence General Legal Criteria Generally, a claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, 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, will be considered as having been filed about the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disorder. The Veteran's claim of entitlement to service connection for bilateral hearing loss disorder was initially denied by the RO in a February 2008 rating decision; he did not appeal the decision. The Veteran submitted a claim to reopen the issue of entitlement to service connection for bilateral hearing loss in September 2013. The RO reopened the claim in an August 2014 rating decision, but denied it on the merits; the Veteran did not appeal the decision. Evidence considered at the time of the August 2014 rating decision consisted of service treatment records, service personnel records, and VA outpatient treatment records dated from August 2013 through March 2014, and a September 2007 VA examination report. In August 2017, the Veteran submitted a claim to reopen the issue. In a December 2017 rating decision, the RO reopened the issue of entitlement to service connection for a bilateral hearing loss disorder, and denied the claim. Notwithstanding the RO's actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence received since the August 2014 rating decision includes statements from the Veteran indicating that his current symptoms of bilateral hearing loss, first arose during active, and have continued to the present. In addition, during a November 2020 hearing before the Board, the Veteran testified that he was exposed to thousands of rounds of artillery during multiple flights aboard C-130's during service without the use of hearing protection. Moreover, contemporaneous VA outpatient treatment records demonstrate complaints of decreased hearing, and the Veteran's reported inability to distinguish who the speaker is within a crowded room. The aforementioned evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim of entitlement to service connection for bilateral hearing loss disorder, is in order. Shade, 24 Vet. App. at 110. 4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder. The Veteran's claim of entitlement to service connection for a left knee disorder was initially denied by the RO in an August 2014 rating decision; he did not appeal the decision. The Veteran submitted a claim to reopen the issue of entitlement to service connection for a left knee disorder in October 2014. The RO reopened the claim in a January 2015 rating decision, but denied it on the merits; the Veteran did not appeal the decision. Evidence considered at the time of the January 2015 rating decision consisted of service treatment records, service personnel records, and VA outpatient treatment records dated from September 2007 through January 2015. In February 2018, the Veteran submitted a claim to reopen the issue. In a June 2018 rating decision, the RO declined to reopen the issue of entitlement to service connection for a left knee disorder. Notwithstanding the RO's actions, the Board must make its own determination on this matter. Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence received since the January 2015 rating decision includes statements from the Veteran indicating that his current symptoms of left knee pain and instability, first arose during active, and have continued to the present. In addition, contemporaneous VA outpatient treatment records demonstrate complaints of left knee pain, swelling, and instability. The aforementioned evidence is not cumulative or redundant of the evidence previously of record. Moreover, it relates to an unestablished fact necessary to substantiate the claim. Therefore, it is new and material, and reopening of the claim of entitlement to service connection for a left knee disorder, is in order. Shade, 24 Vet. App. at 110. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss disorder, to include as secondary to the service-connected tinnitus disability. The Veteran contends that his current bilateral hearing loss disorder is the result of active service. Specifically, during a November 2020 hearing before the Board, he testified that he was exposed to thousands of rounds of artillery during multiple flights aboard C-130's without the use of hearing protection. In addition, he asserted that he served as an HVAC specialist, and was exposed to loud equipment and engine rooms. Finally, he reported that he bunked close to the flightline, while stationed in North Carolina. Service treatment records include the report of an August 1999 induction examination, which is negative for complaints of, treatment for, or a diagnosis of a hearing loss disorder. The report of a February 2002 reference audiogram does not demonstrate a threshold shift or a diagnosis of hearing disorder. The report of a May 2003 post-deployment examination notes the Veteran's report of exposure to loud noise "often." The report of a January 2005 post-deployment examination notes the Veteran's report of ringing in his ears. The report of a July 2005 post-deployment examination includes the Veteran's report of ear trouble. The audiogram demonstrates a significant threshold shift since entry into active service. The examiner notation included "question hearing defect." Post-service contemporaneous VA outpatient treatment records include complaints of decreased hearing since active service. The report of a November 2017 VA examination demonstrates a threshold shift compared to audiograms performed during service, however, there was no hearing loss for VA compensation purposes. Since the aforementioned examination, the Veteran has continued to assert a worsening of his hearing since active service, to include difficulty understanding, and in the alternative, that his current hearing loss disorder is due to his service-connected tinnitus disability. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2020). This includes any increase in severity of a nonservice-connected disease that is proximately due to or the result of a service-connected disability as set forth in 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. Given the Veteran's ongoing statements of a worsening of hearing since active service, and his claim of secondary service connection, another examination and opinion are necessary to make a determination in this case. 2. Entitlement to service connection for a left knee disorder, to include instability, to include as secondary to the service-connected left lower extremity compartment syndrome and/or right lower extremity compartment syndrome. The Veteran contends that his current left knee pain and instability, first arose during active service, and have continued to the present. In the alternative, he contends that his current left knee instability disorder is due to his service-connected left lower extremity compartment syndrome, and/or right lower extremity compartment syndrome. Service treatment records include the report of a May 2003 post-deployment examination that notes the Veteran's report of swollen, stiff, or painful joints. The report of a January 2005 post deployment examination indicates the Veteran's report of swollen, stiff, or painful joints. The report of a July 2005 retention examination notes the Veteran's report of sprained muscles. Post-service contemporaneous VA outpatient treatment records note the Veteran's report of left knee pain, swelling, and instability. The report of a November 2017 VA examination notes the Veteran's assertion of left knee pain, however, there was no evidence of instability or a left knee diagnosis other than left knee compartment syndrome. Since the aforementioned examination, the Veteran has continued to assert a worsening of his left knee symptoms since active service, to include instability, and in the alternative, that his current left knee disorder is due to his service-connected left lower extremity compartment syndrome and/or right lower extremity compartment syndrome. Given the Veteran's ongoing statements of a worsening of left knee symptoms since active service, and his claim of secondary service connection, another examination and opinion are necessary to make a determination in this case. In addition, the issue of entitlement to service connection for a left knee disorder is deferred until the claim of entitlement to an initial evaluation in excess of 10 percent for service-connected left leg compartment syndrome is adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). 3. Entitlement to service connection to a right foot disorder, to include as secondary to the service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. See argument Below at 4 4. Entitlement to service connection to a left foot disorder, to include as secondary to the right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. The Veteran contends that his current right and left foot pain and swelling, first arose during active service, and have continued to the present. In the alternative, he contends that his current right and left foot disorders are due to his service-connected right lower extremity compartment syndrome, and/or left lower extremity compartment syndrome. Service treatment records include a June 2001 record that demonstrates the Veteran's report of right ankle swelling and pain; the examiner noted swelling, bruising, and redness. The Veteran was put on a profile for seven days and told to ice, rest, and elevate his ankle. A July 2001 record that notes the Veteran's report of left great toe pain; the examiner treated the toe with a cortisone injection. An August 2001 record notes the Veteran's report of left great toe pain; left great toe ingrown nail was assessed. The report of a May 2003 post-deployment examination notes the Veteran's report of swollen, stiff, or painful joints. The report of a January 2005 post deployment examination indicates the Veteran's report of swollen, stiff, or painful joints. The report of a July 2005 retention examination notes the Veteran's report of foot trouble and sprained muscles. Post-service records include the report of a November 2017 VA examination, during which the examiner diagnosed bilateral foot pes planus and plantar fasciitis. The examiner found that the Veteran's in-service left great toe problem resolved. He further noted that the Veteran's current right and left foot pes planus and plantar fasciitis were structural and weight-bearing problems. The examiner noted the Veteran's reports of swollen, stiff, or painful, following his several deployments; however, he found that such complaints were due to the service-connected right and left lower extremity compartment syndrome disabilities. The examiner concluded that the current right and left foot pes planus and plantar fasciitis disorders were not related to the Veteran's toenail excision during service. The Board finds the November 2017 VA opinion inadequate to adjudicate the claim, as the examiner did not provide an etiology for the Veteran's current right and left foot pes planus and plantar fasciitis disorders, nor did he address whether the disorders are secondary to the service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. Accordingly, on remand, a VA medical opinion in necessary to address the etiology of the Veteran's current right and left foot pes planus and plantar fasciitis disorders, to include whether they are caused or aggravated by his service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. 5. Entitlement an evaluation in excess of 50 percent for service-connected acquired psychiatric disability. See argument Below at 8 6. Entitlement an initial evaluation in excess of 10 percent for service-connected right leg compartment syndrome. See argument Below at 8 7. Entitlement an initial evaluation in excess of 10 percent for service-connected left leg compartment syndrome. See argument Below at 8 8. Entitlement to an initial compensable evaluation for service-connected migraine headache disability. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded VA examinations to assess the severity of his service-connected acquired psychiatric disorder, right and left leg compartment syndrome, and headache disabilities in April 2018, May 2018, and November 2017, respectively, approximately three and four years ago. In subsequent statements and outpatient treatment, the Veteran asserted that his service-connected acquired psychiatric disorder, right and left compartment syndrome, and headache disabilities worsened; specifically, that he experienced mental breakdowns that affected his ability to function as well as feelings of extreme rage and the desire to physically injure others, symptoms of right and left lower extremity increased sharp muscle pain and difficulty walking up and down stairs, and prostrating headaches multiple times a week lasting several hours, suggesting, his symptoms may have increased in severity since the April 2018, May 2018, and November 2017 VA examinations. Further, during a November 2020 hearing before the Board, the Veteran reiterated that his symptoms had worsened since the aforementioned examinations. In light of the foregoing, more contemporaneous examinations are warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected acquired psychiatric disorder, right and left lower compartment syndrome, and headache disabilities. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 9. Entitlement to an effective date earlier than February 2, 2018, for the grant of an increased 50 percent evaluation for service-connected acquired psychiatric disorder. The issue of entitlement to an effective date earlier than February 2, 2018, for the grant of an increased 50 percent evaluation for service-connected acquired psychiatric disorder is deferred until the claim of entitlement to evaluation in excess of 50 percent for service-connected acquired psychiatric disorder is adjudicated. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely ties together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include updated VA outpatient treatment records, as well as any private treatment records identified by the Veteran. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of any hearing disability present during the period on appeal, to include bilateral hearing loss. The examiner must review the record, to include service treatment records, VA and examination reports, and the Veteran's statements and testimony. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. With respect to each hearing disorder present during the period of the claim, the examiner must state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder, to include bilateral hearing loss, originated during service or are otherwise etiologically related to the Veteran's service, to include his exposure to noise during service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the hearing loss disorder was caused or permanently worsened by the service-connected tinnitus disorder. If the physician believes that a hearing loss disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinions, the examiner must discuss the service treatment records, to include the report of an August 1999 induction examination, which is negative for complaints of, treatment for, or a diagnosis of a hearing loss disorder; the report of a February 2002 reference audiogram that does not demonstrate a threshold shift or a diagnosis of hearing disorder; the report of a May 2003 post-deployment examination that notes the Veteran's report of exposure to loud noise often; the report of a January 2005 post-deployment examination that notes the Veteran's report of ringing in his ears; and the report of a July 2005 post-deployment examination that notes the Veteran's report of ear trouble and the examiner's notation of "question hearing defect." The examiner must also discuss the theory of delayed or latent onset of hearing loss, as well as the Veteran's lay statements and testimony regarding his noise exposure while serving as an HVAC specialist, when he was exposed to loud equipment and engine rooms without the use of hearing protection, while aboard multiple C-130 flights when he was exposed to thousands of rounds of artillery without the use of hearing protection, and his barracks located close to the flightline while stationed in North Carolina. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. Schedule the Veteran for an appropriate VA examination to determine the etiology of any left knee disability present during the period on appeal, other than left knee compartment syndrome. The examiner must review the record, to include service treatment records, VA and examination reports, and the Veteran's statements and testimony. The examiner must also consider the Veteran's documented medical history, assertions, and reported symptoms. All indicated studies should be completed, and all clinical findings reported in detail. With respect to each left knee disorder (other than left knee compartment syndrome) present during the period of the claim, the examiner must state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the disorder, originated during service or is otherwise etiologically related to the Veteran's service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the left knee disorder was caused or permanently worsened by the service-connected left lower extremity compartment disorder and/or right lower extremity compartment disorder. If the physician believes that a left knee disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. In providing the opinions, the examiner must discuss the service treatment records, to include the report of a May 2003 post-deployment examination that notes the Veteran's report of swollen, stiff, or painful joints; the report of a January 2005 post deployment examination that indicates the Veteran's report of swollen, stiff, or painful joints; and the report of a July 2005 retention examination that notes the Veteran's report of sprained muscles. The examiner must also discuss the Veteran's lay statements and testimony regarding his ongoing left knee pain and instability since active service. For purposes of the opinions, the physician should assume that the Veteran is credible to report a history of the aforementioned symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion 4. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current right foot pes planus and plantar fasciitis disorders, manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the right foot pes planus and plantar fasciitis disorders were caused or permanently worsened by the service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. If the physician believes that a right foot disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 5. Once the record is developed to the extent possible, all pertinent evidence of record must be made available to and reviewed by an appropriate VA physician who has not provided a prior opinion in this case. The Veteran need not appear for an examination unless deemed necessary by the physician assigned to offer an opinion. The examiner must provide an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the current left foot pes planus and plantar fasciitis disorders, manifested during, or as a result of, active military service. If not, the physician should state a medical opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that the left foot pes planus and plantar fasciitis disorders were caused or permanently worsened by the service-connected right lower extremity compartment syndrome and/or left lower extremity compartment syndrome. If the physician believes that a left foot disorder was permanently worsened by a service-connected disorder(s), the physician should attempt to identify the baseline level of disability that existed prior to the onset of aggravation and the extent of disability that is attributable to aggravation. For purposes of the opinion, the examiner should assume that the Veteran is a credible historian to report on in-service and post-service symptomology he experienced. If the examiner is unable to provide any required opinion, the examiner should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. Another examination of the Veteran should only be performed if deemed necessary by the physician providing the opinions. 6. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected acquired psychiatric disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and testimony. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the acquired psychiatric disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 7. Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected right and left lower extremity compartment syndrome disabilities. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and testimony. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner must provide all information required for rating purposes, to specifically include the results of range of motion testing for pain on both active and passive motion and on weight-bearing and nonweight-bearing. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. 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. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 8. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected migraine headache disability. The examiner should thoroughly review the record and should note that review in the report. The examiner should also consider the Veteran's assertions and testimony. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the migraine headache disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 9. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 10. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period for response before the case is returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.