judge_norm: K J ALIBRANDO

condition: knee

condition: psychiatric

text:
Citation Nr: 1422000
Decision Date: 05/15/14    Archive Date: 05/29/14

DOCKET NO.  09-14 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1.  Entitlement to service connection for right knee osteoarthritis (a right knee disability).

2.  Entitlement to service connection for left knee osteoarthritis (a left knee disability).

3.  Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), dysthymic disorder, generalized anxiety disorder, bipolar disorder, obsessive-compulsive disorder, and panic disorder.

4.  Entitlement to service connection for bilateral hearing loss.

5. Entitlement to service connection for bilateral tinnitus.

	(CONTINUED ON NEXT PAGE)
REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Ragheb, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, had active military service from
August 1963 to August 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Veteran requested a hearing before the Board, and this hearing was scheduled for November 2011.  However, the Veteran failed to appear for this hearing and has not presented good cause for doing so.  As such, his request for a hearing is considered withdrawn.  38 C.F.R. �20.702(d) (2013).

In February 2012, the Board remanded this case to the RO via the Appeals Management Center (AMC) in Washington DC for additional development, to include obtaining relevant Social Security Administration (SSA) records as well as obtaining outstanding VA treatment records, including May 1989 and August 2004 audiological evaluation reports.  On remand, SSA records as well the August 2004 audiological report were obtained; however, the Agency of Original Jurisdiction (AOJ) was unable to obtain the May 1989 audiological report.  38 C.F.R.
� 3.159(e) (2013).  The Board finds that the RO has substantially complied with the February 2012 remand directives and that the case has properly been returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran initially filed a claim for service connection for PTSD; however, in the February 2012 remand, the Board recharacterized the issue as entitlement to service connection for an acquired psychiatric disorder to include PTSD, dysthymic disorder, generalized anxiety disorder, bipolar disorder, obsessive-compulsive disorder, and panic disorder.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009).

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.

The issues of entitlement to service connection for hearing loss and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  The Veteran's currently-diagnosed bilateral knee osteoarthritis did not have its onset during active service.

2.  The Veteran's bilateral knee osteoarthritis did not manifest to a compensable degree within one year of active service.

3.  The Veteran did not have chronic symptoms related to bilateral knee osteoarthritis in service, nor did he have continuous symptoms since service.

4.  The Veteran has a current diagnosis of PTSD.

5.  An in-service stressor sufficient to cause PTSD has not been verified.

6.  The Veteran did not sustain an injury or event related to an acquired psychiatric disorder in service.

7.  The Veteran did not experience psychiatric symptoms in service.

8.  An acquired psychiatric disorder was diagnosed post-service.

9.  An acquired psychiatric disorder, to include PTSD, was not incurred in service nor is it otherwise related to service.

CONCLUSIONS OF LAW

1.  The criteria for service connection for right knee osteoarthritis have not been met.  38 U.S.C.A. �� 1110, 1111, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309 (2013).

2.  The criteria for service connection for left knee osteoarthritis have not been met.  38 U.S.C.A. �� 1110, 1111, 1131, 1137, 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304, 3.307, 3.309 (2013).

3.  The criteria for service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, generalized anxiety disorder, bipolar disorder, obsessive-compulsive disorder, and panic disorder, are not met.  38 U.S.C.A.
�� 1110, 1131, 5107 (West 2002); 38 C.F.R. �� 3.102, 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits.
38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
�� 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C.A. � 5103(a); 38 C.F.R.
� 3.159(b).  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  38 C.F.R. � 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

Here, notice was provided to the Veteran in December 2006, prior to the initial AOJ adjudication in August 2007, and in February 2009, prior to the readjudication of the claims in the February 2009 statement of the case (SOC).  The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, as well as of VA and the Veteran's respective duties for obtaining evidence.  These letters also notified the Veteran of VA's practices in assigning disability evaluations and effective dates.  Thus, the Board concludes that VA satisfied its duties to notify the Veteran.

VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. � 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).  Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, post-service treatment records, and Social Security Administration (SSA) records as well as the Veteran's own statements in support of his claims.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  See
38 U.S.C.A. � 5103A (d); see also 38 C.F.R. � 3.159 (c)(4); Wells v. Principi,
327 F. 3d 1339, 1341(Fed. Cir. 2002).

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).  A medical examination or medical opinion may be deemed necessary where the record contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, establishes that the veteran suffered an event, injury or disease in service, and indicates that the claimed disability may be associated with the established event, injury or disease in service.  See Id; McLendon v. Nicholson, 20 Vet App. 79, 83 (2006).  The Board finds that a VA examination is not necessary with respect to the claims for service connection for a right knee disability, a left knee disability, and an acquired psychiatric disability, to include PTSD.  As discussed below, the Board finds that there is no in-service injury, chronic symptoms during service, or continuous symptoms since service related to the claimed bilateral knee disabilities.  The Board also finds that an in-service PTSD stressor has not been verified and the weight of the evidence does not demonstrate that an acquired psychiatric disability may be associated with an in-service event, injury, or disease.  The Board finds that a VA examination is not necessary for disposition of the claims for service connection for a right knee disability, a left knee disability, and an acquired psychiatric disorder, to include PTSD.  See 38 U.S.C.A. � 5103A(a)(2); 38 C.F.R. � 3.159(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. � 5103A and 38 C.F.R. � 3.159(c), as indicated under the facts and circumstances in this case.  The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal.  Mayfield, 444 F.3d at 1328.  Therefore, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim.

Service Connection Legal Authority

Under the relevant laws and regulations, 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 (West 2002); 38 C.F.R.
� 3.303(a) (2013).  As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. � 3.303(d).  This has been interpreted as a three-element test: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Bilateral knee osteoarthritis is considered a form of arthritis, which is a "chronic disease" listed under 38 C.F.R. � 3.309(a); therefore, the presumptive provisions of 38 C.F.R. � 3.303(b) apply to the claims for service connection for bilateral knee osteoarthritis.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, acquired psychiatric disorders are not listed under 38 C.F.R. � 3.309(a); therefore, the presumptive provisions of 38 C.F.R. � 3.303(b) do not apply to the claim for service connection for an acquired psychiatric disorder.  Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service.  In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection.  38 C.F.R. � 3.303(b) (2013).

Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. �� 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. �� 3.307, 3.309(a) (2013).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  Id.

Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with DSM-IV), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s).  See 38 C.F.R. � 3.304(f) (2013).  In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. � 1154(a) (West 2002); 38 C.F.R. � 3.304(f).  The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy."  Id.

If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor.
38 U.S.C.A. � 1154(b) (West 2002); 38 C.F.R. � 3.304(f).  No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service."  Id.  If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor.  Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements.  See Moreau v. Brown, 9 Vet. App. 389, 394 (1996).

The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of posttraumatic stress disorder is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.

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.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  Notwithstanding the above, however, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See 38 C.F.R.
� 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).

Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.

The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.
See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Service Connection for Bilateral Knee Osteoarthritis

The Veteran contends that service connection is warranted because his bilateral knee osteoarthritis is related to service.  After reviewing all the lay and medical evidence of record, including the Veteran's statements, the Board finds that the weight of the evidence does not establish that bilateral knee osteoarthritis is related to active service.

The record reflects that the Veteran is currently diagnosed with bilateral knee osteoarthritis and that he underwent total bilateral knee replacement; therefore, the Board finds that the Veteran has a current disability of the bilateral knees.

With regard to in-service incurrence, the Veteran contends that he currently his bilateral knee disability resulted from wearing combat boots for three years during service.  See April 2009 VA Form 9.  However, the Veteran's service treatment records show that the Veteran was not treated for any injuries to the knees, to include as a result of wearing service boots.  In fact, service treatment records show no complaints, diagnoses, or treatment relating to the knees.  Wearing service boots does not constitute an in-service event or injury unless there is evidence of an injury as a result of wearing service boots.  See Holton, 557 F.3d 1363.  Accordingly, the Board finds that the weight of the evidence establishes that there was no in-service injury to the Veteran's knees nor did the Veteran have chronic symptoms during service related to the bilateral knee disability.

The Board further finds that the weight of the evidence demonstrates that the Veteran did not have continuous symptoms related to bilateral knee osteoarthritis since service.  The Veteran has asserted that he has had bilateral knee pain since service.  However, at a May 2008 orthopedic VA consultation, the Veteran indicated that he had worsening bilateral knee pain for greater than 10 to 15 years; however, the Veteran did not assert that his knee pain had been present since service.  Moreover, a July 1968 army reserve report of medical examination, which took place two years after the Veteran's separation from service, shows a normal lower extremity evaluation.  A concurrent report of medical history, completed by the Veteran, indicates that he denied symptoms of arthritis, bone or joint deformity, "trick" or locked knee, or any other knee symptoms, while noting symptoms of other conditions such as running ears.

Therefore, given these contradictory and inconsistent statements, the Board finds that the Veteran is not credible with respect to his assertion that he has had continuous symptoms of the bilateral knee disability since service.  Moreover, considering the Veteran's statements at the May 2008 orthopedic VA consultation, the earliest post-service evidence of symptoms related to the bilateral knee disability is over 30 years after discharge from service.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor that tends to weigh against a claim for service connection).  Accordingly, the Board finds that the weight of the evidence establishes that symptoms related to the bilateral knee disability were not continuous since service.

In order to establish service connection on a presumptive basis, the Veteran's bilateral knee osteoarthritis had to have manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 C.F.R. � 3.307.  Under Diagnostic Code (DC) 5003, in the absence of limitation of motion, a 10 percent rating is awarded for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joints.  38 C.F.R.
� 3.71a (2013).  The record does not show limitation of motion of the knees within one year of separation from service.  Moreover, as discussed above, the July 1968 army reserve report of medical examination, which took place two years after the Veteran's separation from service, shows a normal lower extremity evaluation and the Veteran denied any symptoms related to the knees at that time.  Accordingly, the Board finds that the weight of the lay and medical evidence establishes that bilateral knee osteoarthritis did not manifest to a compensable degree during service or within one year of service separation.

Finally, the record shows no link between the Veteran's bilateral knee osteoarthritis and active service.  Insomuch as the Veteran asserts that his bilateral knee disability is directly related to wearing service boots for three years during active service, the Board finds that the Veteran is not competent to relate his bilateral knee disability to active service.  While the Veteran is competent to describe in-service knee symptoms, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation or etiology.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

For the reasons discussed above, the Board finds that the weight of the lay and medical evidence of record shows that the current bilateral knee osteoarthritis was not incurred in service, was not manifest to a compensable degree within one year after discharge, nor is it otherwise related to service.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. � 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise warrant a grant of the Veteran's claim.  As such, service connection for bilateral knee osteoarthritis is not warranted.

	Service Connection for an Acquired Psychiatric Disorder,
to Include PTSD, dysthymic disorder, generalized anxiety disorder,
bipolar disorder, obsessive-compulsive disorder, and panic disorder

PTSD

The Veteran contends that he has PTSD as a result of military service.  The Board finds that the Veteran has a current PTSD diagnosis consistent with DSM-IV.  See June 2008 VA mental health note.  However, the Board finds that the weight of the lay and medical evidence of record does not establish that the Veteran's currently-diagnosed PTSD is related to a verified in-service stressor.

With respect to in-service stressor, the Veteran's accounts have changed over time.  The Veteran initially reported in September 2005 that he spent 13 months in the Korea delimilitarized zone, that he was in signal corps, and that he was not shot at nor did he fire a weapon at others, but recalled that he was extremely anxious while driving a large truck on muddy roads because he did not want to accidentally hit a villager or a bystander; the Veteran indicated that he was aware that this happened with others but denied having personally seen it happen.  See September 2005 VA mental health note.  In October 2005, the Veteran referred to being anxious about accidentally hitting a civilian while driving a truck, but indicated that he did not hit anyone; the Veteran added that a friend went to Vietnam during service and was killed there, and, as a result, the Veteran was in continuous fear of being sent to Vietnam.  See October 2005 VA mental health note.

In September 2006, the Veteran gave a new account about his stressors when he reported having multiple major traumatic events; the first, was witnessing the prevalent social and economic difficulties in Korea and having feelings of guilt, shame, and sorrow regarding what he saw and his inability to help; the Veteran also stated that there were a number of accidents, which occurred while driving on convoys in which he witnessed both civilians and some military personnel killed, which is inconsistent with the Veteran's September 2005 statement in which he indicated that he had not witnessed anybody hit by a vehicle; he also reported a number of incidents were young Korean men would break into the base to steal and kill personnel, and that there was an instance when someone broke into his jeep, that the Veteran had a brief altercation with him, and that the Korean man ended up running away.  See September 2006 VA mental health note.  Finally, in April 2009, the Veteran indicated that he was stationed in a combat zone in Korea, that he saw military personnel killed, and felt that he was in danger all the time.  See April 2009 VA Form 9.  However, this is inconsistent with the August 2007 VA memorandum, which confirms that the Veteran did not have any combat assignments during active service.  Additionally, to the extent this statement indicates that he witnessed death of military personnel, this statement is not consistent with any of his earlier statements which provided details of other claimed stressors but did not mention that he personally witnessed death.

Given the Veteran's conflicting and inconsistent statements, the Board finds that the Veteran is not credible with respect to the statements he made relating to the claimed in-service stressors.  The Board further finds that the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor and the record does not contain service records or other evidence to corroborate the Veteran's statements.  See Moreau, 9 Vet. App. at 394.  Furthermore, the Board is not bound to accept uncorroborated accounts of stressors.  See Wood, 1 Vet. App. 190.

Finally, the VA has attempted on multiple occasions to obtain more details from the Veteran with respect to the claimed PTSD stressors, but the Veteran failed to provide any such statements.  An August 2007 VA memorandum shows a formal finding that the VA was unable to verify the Veteran's claimed stressors.  Given the Veteran's failure to provide more details to enable the VA to verify the claimed stressors, the Board finds that there is no verified in-service PTSD stressor.

The Board has considered the June 2008 VA mental health note, in which a VA psychiatrist diagnosed the Veteran with PTSD related to the traumatic events in the military.  However, the VA psychiatrist did not relate the Veteran's PTSD to a specific verified in-service stressor, and relied solely on the Veteran's statements regarding the in-service traumatic events, which the Board has found not credible.  See Wood, 1 Vet. App. 190.  Moreover, the VA psychiatrist did not report which traumatic events resulted in the Veteran's PTSD.  Therefore, this diagnosis is of no probative value to the issue of service connection for PTSD on appeal because it is not based on verified in-service stressors.

Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the Veteran did not participate in combat with the enemy during service, that his claimed noncombat in-service stressors have not been verified, and that no VA psychiatrist or psychologist related a stressor based on fear of hostile military or terrorist activity to the Veteran's currently-diagnosed PTSD.  As the preponderance of the evidence is against the claim for service connection for PTSD, the issue must be denied, and there is no reasonable doubt to be resolved.
38 U.S.C.A. � 5107; 38 C.F.R. � 3.102.

Acquired Psychiatric Disability Other Than PTSD

The Veteran contends that he has an acquired psychiatric disorder as a result of military service.  The record reflects that the Veteran has been diagnosed with dysthymic disorder, generalized anxiety disorder, bipolar disorder, obsessive-compulsive disorder, and panic disorder.  Therefore, the Board finds that the Veteran has a current acquired psychiatric disorder, other than PTSD.  However, the weight of the lay and medical evidence of record does not establish that a currently-diagnosed acquired psychiatric disorder, other than PTSD, is related to active service.

With respect to the in-service element of service connection, as explained above under service connection for PTSD, the Veteran has made multiple conflicting statements with respect to in-service traumatic events.  The VA has been unable to verify any of these traumatic events and the Board has found that the Veteran's inconsistent and conflicting statements relating to the claimed in-service traumatic events not credible.  Furthermore, service treatment records show no complaints, diagnoses, or treatment relating to any psychiatric disorder at any time during service.  While there is no service separation examination of record, a July 1968 army reserve examination, which was conducted two years after the Veteran's separation from service, shows a normal psychiatric evaluation.  Moreover, a concurrent report of medical history, completed by the Veteran, shows that the Veteran denied depression or excessive worry, frequent trouble sleeping, loss of memory or amnesia, and nervous trouble of any sort.  Accordingly, the Board finds that weight of the lay and medical evidence of record establishes that the Veteran did not sustain an injury or event related to an acquired psychiatric disorder other than PTSD during service, nor did he have symptoms of a psychiatric disability since service.

Finally, the record shows no link between the diagnosed acquired psychiatric disorders, other than PTSD, and active service.  Insomuch as the Veteran asserts that an acquired psychiatric disorder, other than PTSD, is directly related to service, the Board finds that the Veteran is not competent to relate an acquired psychiatric disability to active service.  While the Veteran is competent to describe an in-service injury, he does not have the requisite medical expertise needed to provide a competent opinion regarding causation or etiology of the claimed acquired psychiatric disorder.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

For the reasons discussed above, the Board finds that the weight of the lay and medical evidence of record demonstrates that an acquired psychiatric disability, other than PTSD, was not incurred in service nor is it otherwise related to service.  In making this determination, the Board has considered the provisions of
38 U.S.C.A. � 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise warrant a grant of the Veteran's claim.  As such, service connection for an acquired psychiatric disorder, other than PTSD, is not warranted.

ORDER

Service connection for right knee osteoarthritis is denied.

Service connection for left knee osteoarthritis is denied.

Service connection for an acquired psychiatric disability, to include PTSD, dysthymic disorder, generalized anxiety disorder, bipolar disorder, obsessive-compulsive disorder, and panic disorder, is denied.

REMAND

The Veteran contends that his current bilateral hearing loss and tinnitus are related to in-service exposure to acoustic trauma.  The April 2007 VA audiological examination report indicates that the Veteran reported being exposed to acoustic trauma during service from firing weapons and as a result of exposure to diesel generator noise without proper use of hearing protection.

During the development of the claims for service connection for bilateral hearing loss and tinnitus, the Veteran was provided a VA audiological examination in April 2007, in which the VA examiner opined that military noise exposure is not responsible for the Veteran's bilateral hearing loss or tinnitus.

In reaching this conclusion with respect to bilateral hearing loss, the VA audiologist indicated that the Veteran's hearing was within normal limits for adjudication purposes on a 1968 army reserve examination report, 2 years after separation from active service.  With respect to in-service hearing loss, the Veteran's hearing thresholds are not required to meet the VA criteria for disability purposes under
38 C.F.R. � 3.385 (2013).  The correct standard to apply to in-service hearing loss, if any, is that the threshold for normal hearing ranges from 0 to 20 decibels.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).  The July 1968 army reserve examination shows that the Veteran had some right ear hearing loss at the 4000 hertz level under Hensley.

With respect to tinnitus, the VA audiologist indicated that at a May 1989 initial evaluation at the same clinic, the Veteran denied tinnitus.  However, as explained above, the Board previously remanded this case so the May 1989 audiological report would be obtained; however, the AOJ was unable to locate such report.  Therefore, since the May 1989 audiology report is not of record, information contained therein cannot be relied upon in concluding that the Veteran's tinnitus is not related to service.

Given these deficiencies in the April 2007 VA examination and etiological opinion contained therein, the Board finds that another examination should be conducted to address the Veteran's claims of service connection for bilateral hearing loss and tinnitus on appeal.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following actions:

1. The AOJ should schedule the Veteran for a VA audiology examination for the purpose of ascertaining the etiology of the Veteran's current bilateral hearing loss and tinnitus.  The claims file must be made available to the VA examiner.

The VA examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's bilateral hearing loss and tinnitus had their origin in service or are in any way related to the Veteran's active service, to include the claimed in-service acoustic trauma.

The examiner should specifically comment on the Veteran's claims of in-service acoustic trauma as a result of firing weapons and exposure to diesel generator noise.  With respect to tinnitus, the examiner should disregard the notations in the April 2007 VA examination report regarding the May 1989 audiology report because the May 1989 audiological report is not of record.  The examiner should also comment on the high frequency hearing loss at the 4000 hertz level as reported in the July 1978 army reserve examination report, 2 years after service.  Finally, the examiner should address the Veteran's assertions that he has had bilateral hearing loss and tinnitus since service.

The examiner should provide a rationale for all opinions given with reference to the evidence of record.

2. After completing the above, and any other development deemed necessary, the claims for service connection on appeal should be readjudicated.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.

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 Supp. 2013).

______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs


series: legacy

judge_norm: MARK F HALSEY

disposition: remanded

text: This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).

text:
Citation Nr: 1423000
Decision Date: 05/21/14    Archive Date: 05/29/14

DOCKET NO.  11-14 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri

THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for a neck disability.

WITNESSES AT HEARING ON APPEAL

The appellant and his wife

ATTORNEY FOR THE BOARD

Chris Miller, Associate Counsel

REMAND

The appellant served in the Air National Guard from March 1977 to March 1983.

This matter comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the VA RO in St. Louis, Missouri.

A review of the record reflects that a remand is necessary in order to schedule the appellant for a video conference hearing before a Veterans Law Judge (VLJ).  On a May 2011 VA Form 9, he requested such a hearing before the Board.  (Even though a hearing was later held at the RO before a decision review officer, the appellant has not withdrawn his request for a hearing before a member of the Board.)  Video hearings before the Board are scheduled by the RO.  Thus, a remand is necessary.  38 U.S.C.A. � 7107 (West 2002); 38 C.F.R. �� 20.703, 20.704 (2013).

Accordingly, the case is REMANDED to the RO for the following action:

Schedule the appellant for a video conference hearing at the RO before a Veterans Law Judge sitting at the Board in Washington D.C.

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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2013).

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).


judge_norm: MARK D HINDIN

text: 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 Supp. 2013).

text:
Citation Nr: 1424000
Decision Date: 05/28/14    Archive Date: 06/06/14

DOCKET NO.  12-12 003	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUE

Entitlement to service connection for bladder cancer.

REPRESENTATION

Appellant represented by:	Carl K. Price, Agent

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

K. Archer, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1974 to May 1994.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim of service connection for bladder cancer.

The Veteran testified before the undersigned at a February 2013 videoconference hearing.  A transcript is associated with the claims file.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

In its July 2011 rating decision, the RO referred to Columbus VA Outpatient Clinic treatment records dated from June 2009 through May 2011.  Such records have not been associated with the claims file.  VA has a duty to obtain these records.  Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

At the February 2013 hearing, the Veteran's representative stated that the Veteran had submitted expert medical studies and publications in support of his claim.  See Hearing Transcript, p. 11.  A review of the record reveals that such studies have not been associated with the claims file.

The representative also indicated at the February 2013 hearing that he would be submitting a private medical opinion concerning the Veteran's bladder cancer.  No additional evidence has been added to the record since the February 2013 hearing.

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all outstanding VA treatment records, to include Columbus VA Outpatient Clinic treatment records dated from June 2009 through May 2011.

2.  Ask the Veteran and his representative to submit any additional relevant private treatment records, including any copy of the medical opinion concerning his bladder cancer, or to identify the private medical care provider that authored the medical opinion on the Veteran's bladder cancer, and to furnish signed authorizations for release of these identified records.

If any requested records are unavailable, advise the Veteran of that fact, tell him of the efforts made to obtain the records, and of what additional actions will be undertaken.

3.  Notify the Veteran and his representative that VA is not in possession of the medical studies they identified at the February 2013 hearing.  Then, ask the Veteran and his representative to submit any scientific or medical studies in their possession to support the claim.

4.  If any claim on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.

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 Supp. 2013).

_________________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).


judge_norm: S L KENNEDY

disposition: denied

condition: gi

text:
Citation Nr: 1425000
Decision Date: 06/03/14    Archive Date: 06/16/14

DOCKET NO.  11-04 752	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1. Entitlement to service connection for pes planus.

2.  Entitlement to service connection for a stomach disability.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel

INTRODUCTION

The Veteran had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the U.S. Marine Corps Reserve (USMCR), from January 1957 to October 1960, including a verified period of ACDUTRA from June 16, 1957 to June 29, 1957.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2009 and July 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In March 2009, the RO denied the claim for entitlement to service connection for a stomach disability.  In July 2010, the RO denied the claim for entitlement to service connection for pes planus.

The Board notes that this appeal has been processed through the Veterans Benefits Management System (VBMS) electronic paperless appeals processing system.

In November 2013, the Board reopened the claim of entitlement to service connection for a stomach disability and remanded the issues on appeal for additional development.  As the actions specified in the November 2013 remand have been completed, the matter has been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACTS

1.  The Appellant's service entrance examination reflects that he had pes planus prior to entry into service.

2.  The probative medical evidence does not demonstrate that the Appellant's pes planus was aggravated beyond the natural progression by an injury or illness during his period of ACDUTRA.

3.  The probative medical evidence does not demonstrate that the Appellant's stomach disability is etiologically related to his period of ACDUTRA.

CONCLUSIONS OF LAW

1.  The criteria to establish entitlement to service connection for pes planus have not been met.  38 U.S.C.A. �� 1110, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.159, 3.303, 3.306 (2013).

2.  The criteria to establish entitlement to service connection for a stomach disability have not been met.  38 U.S.C.A. �� 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.159, 3.303 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. � 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). )

The VA satisfied its duty to notify when it issued letters in October 2008, March 2010 and August 2010, prior to the rating decisions, informing the Appellant of all five elements of service connection, gave examples of the types of evidence the Appellant could submit in support of his claim, and provided notice of the Appellant's and VA's respective responsibilities for obtaining such evidence.  The correspondence also informed him of how disability ratings and effective dates are assigned, if service connection was to be granted.  See Dingess v. Nicholson, supra.

The Board concludes that the duty to assist has been satisfied.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159(c).  The Appellant's service treatment records, post-service VA and private treatment records and lay statements are in the file.  The Appellant has not identified any other outstanding records that he wanted VA to obtain or that he felt were relevant to the present claim.

In January 2014, the Appellant was afforded VA examinations to determine the nature and etiology of his pes planus and stomach disability.  The VA examinations are adequate, as they are predicated on a review of the claims file, an interview of the Appellant, and examination findings supported by a complete rationale for the opinions stated.  Id.; see 38 U.S.C.A. � 3.159(c)(4).

II.  Service Connection

Generally, for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval, or air service, compensation will be paid to any veteran discharged or released under conditions other than dishonorable from the period of service in which such injury or disease was incurred, or preexisting injury or disease was aggravated.  38 U.S.C.A. �� 1110, 1131 (West 2002).

Service connection for injury or disease incurred or aggravated during a period of ACDUTRA is warranted.  38 U.S.C.A. � 101(24)(B) (West 2002); 38 C.F.R. � 3.6(a) (2013).  ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C.A. � 101(22); 38 C.F.R. � 3.6(c)(1).  INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state.  38 U.S.C.A. � 101(22); 38 C.F.R. � 3.6(c)(1).  Active duty also includes authorized travel to or from such duty or service.  38 C.F.R. � 3.6(e).  ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA.  38 U.S.C.A. � 101(24); 38 C.F.R. � 3.6(a).

Service connection only for injury incurred or aggravated during a period of INACDUTRA is warranted (injuries include acute myocardial infarction, cardiac arrest, or cerebrovascular accident).  38 U.S.C.A. � 101(24)(C); 38 C.F.R. � 3.6(a) (2013).  INACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA.  38 U.S.C.A. � 101(24); 38 C.F.R. � 3.6(a).  VA's General Counsel has held that it was the intention of Congress when it defined active service in 38 U.S.C.A. � 101(24) to exclude a period of INACDUTRA during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process.  See VAOPGCPREC 86-90.

For the most part, in order to qualify for VA benefits, a claimant must be a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits).  In order to establish his or her entitlement to VA disability compensation benefits, he or she must first establish "veteran" status.  There are three ways to establish "veteran status": 1) serve on active duty; 2) serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA; or 3) serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA.  Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

In other words, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA or INACDUTRA.  See 38 U.S.C. �� 101(2), (22), (24); 38 C.F.R. � 3.6(a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)).  In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of the ACDUTRA or INACDUTRA service alone. 38 U.S.C. � 101(2), (24); see Acciola, 22 Vet. App. at 324.

Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence or aggravation for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities.  38 U.S.C.A. � 1112 (West 2002 & Supp. 2013); 38 C.F.R. �� 3.304(b), 3.306, 3.307, 3.309 (2013).

Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).  These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA.  Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service-connected disabilities from that period).  Also, some presumptions will not apply to certain periods of ACDUTRA and INACDUTRA.  See Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010).  If the claimant did not serve for any period of time on active duty, he or she must establish service connection for a disability on a direct basis first in order to achieve "veteran" status and be entitled to compensation.  Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

As noted, establishing "veteran" status based on aggravation during ACDUTRA is explained in Donnellan, 24 Vet. App. 167.  "Aggravated" under 38 U.S.C.A. � 101(24) has the same meaning as "aggravated" under 38 U.S.C.A. � 1153 -"a preexisting injury or disease will be considered to have been aggravated by active ... service, where there is an increase in disability during such service, unless there is specific finding that the increase is due to the natural progress of the disease."  24 Vet. App. at 172-173.  Proving aggravation must include both elements: 1) there was an increase in disability as to a preexisting injury or disease, and 2) such an increase was beyond the natural progress of that injury or disease.

Although an ACDUTRA claimant does not need to show that his or her ACDUTRA training proximately caused the worsening of his or her preexisting disability, the definition of aggravation in section 1153 and incorporated by section 101(24) does require that an ACDUTRA claimant establish that there is a causal relationship between the worsening of the claimant's preexisting condition and his or her ACDUTRA.  24 Vet. App. at 173-174.  This causal relationship is shown when the claimant establishes that the preexisting condition worsened beyond the natural progress of that condition during service.  Id.

As such, "aggravated in the line of duty" as used in 38 U.S.C.A. � 101(24)(B) means that in order for a claimant to establish his or her status as a "veteran" under 38 U.S.C.A. � 101(24)(B), he or she must demonstrate that he or she experienced a permanent increase in disability beyond the natural progress of that disease or injury during the period of ACDUTRA.  24 Vet. App. at 174.  The claimant has the burden to establish both elements set forth above (that the preexisting disability worsened in service and that such worsening was beyond the natural progression of the disease).  24 Vet. App. at 175.  There is no shifting burden as there is when the presumptions of soundness and aggravation apply.  Id.  The standard of proof remains the "benefit of the doubt" standard under 38 U.S.C.A. � 5107 (West 2002); 38 C.F.R. � 3.102 (2013).  Id.

As noted, service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. �� 1110, 1131; 38 C.F.R. � 3.303(a).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. � 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d 1313, at 1316; Jandreau, 492 F.3d 1372, at 1376-77.

	Pes planus

The Appellant contends that his preexisting pes planus was aggravated during a period of ACDUTRA.

The Appellant does not have any active duty service and he had one period of verified ACDUTRA from June 16, 1957 to June 29, 1957 (see January 1994 NPRC response).  As the Appellant had no period of active duty service, he does not qualify as a "veteran," and therefore, no presumptions apply.  The Appellant may still establish service connection based on a finding that his pes planus was either incurred or aggravated during his period of ACDUTRA.

A January 1957 enlistment examination noted that the Appellant had pes planus, first degree, which was not considered disqualifying.

An April 1960 retention examination noted that the Appellant's bronchial asthma, diagnosed in 1957, disqualified him for service and recommended discharge.  On his April 1960 self-report of medical history, he wrote that his health was "good" and he did not indicate any foot trouble.  His service treatment records reflect no complaints or treatment for his pes planus or any other foot problems.

The Appellant's first post-service report of foot problems was in October 2003, 43 years after his discharge from the USMCR.  A private treatment record noted "cramping in both feet" and "tingling toes at night" in both feet.

VA treatment records dated from January 2007 through November 2013 reflect intermittent reports of the Appellant's bilateral foot problems.  A January 2007 VA treatment record revealed no abnormal findings during a diabetic foot examination. In June 2007, the Appellant reported his concern about a foot callous, which the VA treating physician found was healed and recommended continuing current treatment.  A September 2007 treatment record reflects the Appellant's follow-up for foot fungus.  He was diagnosed with a fungal skin infection and prescribed Lamisil cream.  An April 2008 diabetic foot examination revealed no abnormal findings.

In February 2010, the Appellant had x-rays taken of both feet following complaints of bilateral foot pain.  The x-rays revealed small degenerative changes in the bilateral first metatarsal phalangeal joints.  No fracture, subluxation, or dislocation was found.  The alignment was preserved.

A November 2010 VA treatment record documents the Appellant's report of intermittent bilateral claudication (cramp-like pain in the leg muscles that occurs with exertion) that he had been experiencing for the last six months.  A physical examination revealed that he had palpable femoral pulses bilaterally and dopplerable posterior tibial (PT)and dorsal pedal (DP) signals bilaterally.  There were also no ulcers or lesions found on his feet.

A November 2011 VA treatment record documents a finding that the Appellant's pedal pulses were diminished and his bilateral PT and DP pulses were not palpable.  He was assessed with bilateral claudication.

VA treatment records in June 2012, October 2012 and March 2013 continue to reflect the Appellant's bilateral claudication and bilateral feet pain.  He reported only being able to walk 100 yards.  See March 2013 VA treatment record.

At a January 2014 VA examination for his pes planus, the Appellant reported his bilateral pain which was accentuated on use.  He did not report swelling on use.  The VA examiner did not find any characteristic calluses, pain on manipulation, or extreme tenderness of the plantar surface of his feet.  There was no marked deformity or pronation bilaterally.  The VA examiner found decreased longitudinal arch height on weight bearing bilaterally.  X-rays revealed bilateral foot degenerative arthritis.  Based on the Appellant's short period of ACDUTRA and no objective evidence of aggravation found during service, the VA examiner opined that the Appellant's pes planus clearly and unmistakably preexisted his service in the USMCR, but was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury or illness.

The Board finds that the January 2014 VA examination is the most probative evidence of record that the Appellant's preexisting pes planus was not aggravated by his period of ACDUTRA.  Although the VA examiner found a decreased arch height bilaterally and noted the Appellant's reported bilateral foot pain, the VA examiner found no pain on manipulation and no other findings related to pes planus.  X-rays showed bilateral foot degenerative arthritis.  Moreover, the VA examiner noted the Appellant's short two-week period of ACDUTRA when opining that the Appellant's pes planus was not aggravated beyond its natural progression.

Furthermore, the Board observes that the Appellant did not indicate any foot problems upon separating from service and his first report of foot problems occurred 43 years after discharge.

As the Appellant has the burden to establish that his preexisting pes planus worsened in service and that such worsening was beyond the natural progression of the disease, the Board finds that the Appellant has not met this burden.  Donnellan, 24 Vet. App. at 175.  Rather, the evidence shows that the Appellant's pes planus was not aggravated beyond the natural progression of the condition.

In conclusion, the Board finds after careful review of the entire record that the weight of the evidence is against the Appellant's claim of service connection for pes planus.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

	Stomach Disability

The Appellant contends that, during his period of ACDUTRA in 1957, following a flight to the Marine Corps training center in San Diego, he experienced stomach cramps, nausea and vomiting upon arrival.  He attributed his symptoms to the food he ate on the plane.  He said the symptoms persisted and he was treated at a naval hospital with enemas which did not provide relief.  The Appellant said his symptoms have continued since service.  Following his USMCR service, the Appellant said he sought treatment at the U.S. Public Health Service (records are lost), the University of Texas Medical Center (UTMB) and VA for his stomach problems.  See October 2008, January 2009 and November 2010 statements.

The Appellant's service treatment records do not reflect any complaints, treatment or diagnosis for any stomach problems during a period of ACDUTRA.  His April 1960 retention examination did not indicate any gastrointestinal problems and his self-report of medical history indicated his health was "good" and noted no stomach, liver or intestinal trouble.

The first available treatment record of the Appellant's stomach problems are documented in a May 1993 UTMB private treatment record.  The Appellant's treating physician noted "mild epigastric tenderness" and a history of diverticulosis.

The results of a September 2005 VA imaging study of the Appellant's esophagus and upper gastrointestinal (GI) tract were unremarkable.  There was no evidence of gastroesophageal reflux (GERD), no hiatal hernia, and no gastric mass or ulceration.  A November 2005 VA report documents the results of an imaging study of the Appellant's abdomen, which showed a nonobstructive bowel gas pattern.  Atherosclerosis and scattered diverticula were found.  The diagnosis was diverticulosis.

A January 2006 UTMB private treatment record reflects the Appellant's symptoms of weakness, fatigue, diarrhea, lethargy and cough.  He denied any abdominal pain.  The diagnosis was "possible pneumonia."

March 2006 and April 2006 VA treatment records show that the Appellant had been diagnosed with GERD and treated with Prilosec.

An April 2006 UTMB private treatment record documented the Appellant's complaints of diarrhea and abdominal pain, which was diagnosed as pneumonia.  An abdominal ultrasound found that his stomach was distended.

A July 2008 VA treatment record noted that his GERD diagnosis was "stable."  He was directed to continue taking Prilosec daily.  The Appellant continued to experience no GERD symptoms with daily medication.  See August 2010, November 2011 and June 2012 VA treatment records.

In November 2012, treatment records show that the Appellant had reported chest pains.  He underwent an esophagogastroduodenoscopy (EGD) procedure which found that he had a hiatal hernia in the distal third of his esophagus, a ring in the distal third of the esophagus, and moderately severe erosive gastritis.  He was diagnosed with atypical chest pain likely related to severe gastritis.  See November 2012 VA treatment record and November 2012 Mainland Medical Center treatment record.

A February 2013 VA treatment record reflects his prior history of GERD, which presently had no symptoms, his moderately severe erosive gastritis, and his current complaints of bloating and gas, occasional abdominal or epigastric pain, and occasional dysphagia (difficulty swallowing).  Based on the results of the Appellant's 2005 study of his esophagus and GI tract and his 2012 EGD, the VA treating physician diagnosed the Appellant with GERD or epigastric pain, dysphagia, and gastritis.

A July 2013 VA treatment record noted that the Appellant had experienced an increased number (78 in total) of mostly nonacid reflux episodes.  The VA treating physician found normal distal esophageal acid exposure.

At a January 2014 VA examination for the Appellant's stomach condition, he reported his symptoms of continuous abdominal pain since his 1957 incident during his period of ACDUTRA following his flight to the Marine Corps training center.  The VA examiner, upon reviewing the Appellant's prior medical history and records, diagnosed him with GERD and gastritis.  The VA examiner opined that the Appellant's current stomach condition is "not at least as likely as not" related to his complaints of stomach problems during his period of ACDUTRA.  The VA examiner based his conclusion on the lack of treatment records during service documenting his stomach problems, his own report of no stomach problems upon his discharge, the first report of stomach problems since his discharge occurring in May 1993, and the unremarkable results for the study of his esophagus and upper GI tract in September 2005.

The Board finds that the January 2014 VA examination is the most probative evidence of record as to whether the Appellant's current stomach disability is etiologically related to his period of ACDUTRA.  The VA examiner found that the Appellant had a current stomach disability, but found no evidence to support a link to his period of ACDUTRA.  The Appellant's treatment records did not reflect any stomach problems until more than 30 years after his discharge and prior to his initial GERD diagnosis in March 2006, a September 2005 study showed no evidence of gastrointestinal problems.  Despite the Appellant's assertions that his stomach problems continued since the 1957 incident, he reported no gastrointestinal problems upon discharge.  In fact, he reported his health was "good."

The Board acknowledges the Appellant's contentions that he continued to have stomach problems since his 1957 period of ACDUTRA; however, the Board finds that the VA examiner's opinion is more probative as to whether his current stomach disability is etiologically related to his service.

Therefore, the Board finds after careful review of the entire record that the weight of the evidence is against the Appellant's claim of service connection for a stomach disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C.A. � 5107(b); 38 C.F.R. � 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to service connection for pes planus is denied.

Entitlement to service connection for a stomach disability is denied.

____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


disposition: granted

text:
Citation Nr: 1426000
Decision Date: 06/09/14    Archive Date: 06/16/14

DOCKET NO.  11-26 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUE

Whether new and material evidence has been received to reopen a service connection claim for right ear hearing loss.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel

INTRODUCTION

The Veteran had active military service from November 1968 to October 1970.

This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for bilateral hearing loss finding that new and material evidence had been received to reopen the claim.  Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim of service connection for a right ear hearing loss.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

The RO later granted service connection for left ear hearing loss and tinnitus in an August 2011 rating decision.  Therefore there remains no case or controversy regarding these matters and these claims are no longer in appellate status.

The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  The Veteran's service connection claim for right ear hearing loss was previously denied in a March 2006 rating decision.  The Veteran did not appeal this rating to the Board; nor has he asserted clear and unmistakable error in this decision.

2.  The evidence received since the March 2006 RO decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the claim.

CONCLUSIONS OF LAW

1.  The March 2006 rating decision denying service connection for right ear hearing loss is final. 38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 3.104, 20.1103 (2013).

2.  Since the March 2006 RO rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for right ear hearing loss; and the claim is reopened.  38 U.S.C.A. � 5108 (West 2002); 38 C.F.R. � 3.156 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. �� 5108, 7103, 7104, 7105; 38 C.F.R. �� 3.156, 20.1100 (2013).  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 sustaining the claim.  38 C.F.R. � 3.156(a) (2013).  New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof.  See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  The only exception would be where evidence presented is inherently incredible.  Justus v. Principi, 3 Vet. App. 510   (1992).

The Veteran's service connection claim for right ear hearing loss was originally denied in a March 2006 rating decision on the basis that there was no evidence this disability had been clinically diagnosed.  The Veteran did not appeal this decision.  Therefore, this rating decision is final.  38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103 (2013).

In April 2010 the Veteran submitted a petition to reopen a claim of service connection for right ear hearing loss.  He also submitted a private audiological evaluation dated in November 2010 which noted that audiometric testing demonstrated that the Veteran had high frequency sensorineural hearing loss ranging from mild to moderately severe and that his hearing loss was consistent with his history of noise exposure in the military.

The Board finds that this evidence is both new and material.  Specifically, the newly received evidence relates the Veteran's hearing loss to his military service.  This evidence was not previously considered by agency decisionmakers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. � 3.303 (2013).  Accordingly, the Veteran's claim is considered reopened.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

ORDER

New and material evidence having been received the claim for service connection for right ear hearing loss is reopened; and to this extent only the claim is granted.

REMAND

The Veteran seeks service connection for right ear hearing loss.  The record shows that the Veteran had exposure to acoustic trauma during his military service as he served in the Infantry in Vietnam and earned, in pertinent part, a Combat Infantryman Badge, and is service-connected for shell fragment wounds.  There also are two medical opinions relating the Veteran's hearing loss to his exposure to acoustic trauma in service; and he is service-connected for left ear hearing loss and tinnitus.  The medical records do not show, however, that the Veteran presently has a right ear hearing loss disability for VA purposes.  See 38 C.F.R. � 3.385 (For VA purposes, impaired hearing will not be considered to be a disability unless the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.).

A May 2011 VA examination report notes that auditory threshold in frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hz are 20, 15, 25, 25, and 35 decibels, respectively, and that the speech discrimination score is 98 percent in the right ear.  A November 2010 private audiogram notes similar findings; but it is not clear which ear is designated as right or left ear on the chart.  One ear designated with an "x" is shown as having a hearing loss disability for VA purposes, but the other ear designated with an "o" is not.  However, the right and left ears are not labeled for a lay person to determine which ear indicates "x" and "o".  This is significant because if the right ear is the ear shown as having a hearing loss disability for VA purposes then this would resolve the Veteran's claim in his favor.

The U.S. Court of Appeals for Veterans Claims has held that if a private medical opinion addresses missing information that is relevant, factual, and objective -that is, not a matter of opinion- VA should seek clarification, request the claimant to do so, or explain why such clarification is unnecessary.  Savage v. Shinseki, 24 Vet. App. 259, 268-69 (2011).  As the issue of which ear is shown as having a hearing loss disability for VA purposes is relevant, factual, and objective clarification in this matter is warranted.

Also given that the case must go back for the foregoing reason and it has been three years since the last VA examination another examination should be provided to determine if the Veteran is now shown as having a right ear hearing loss disability.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any ongoing treatment he has received for his hearing loss.  If the Veteran complies make efforts to obtain any identified records.

2.  Ask the Veteran to contact the audiologist who performed the November 2010 audiogram to interpret the graphical findings reported on audiological examination as to each Hertz level and for each ear.  In the alternative the Veteran can provide the proper release form so that VA can make efforts to seek clarification regarding the findings.

3.  Schedule the Veteran for an appropriate VA examination of his hearing loss with a state-licensed audiologist.  The claims folder should be made available to and reviewed by the examiner.  All necessary tests should be performed.

The examiner should conduct a thorough audiological evaluation conforming to Maryland CNC.  The examiner must also provide a full description of the functional effects caused by the hearing loss.

The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.

4.  After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, it should be returned to the examiner for corrective action.

5.  Finally, readjudicate the claim on appeal.  If the benefits remain denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

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 Supp. 2013).

______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


text:
Citation Nr: 1427000
Decision Date: 06/13/14    Archive Date: 06/26/14

DOCKET NO.  10-13 133	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio

THE ISSUES

1. Entitlement to service connection for a left knee disorder.

2. Entitlement to service connection for a right knee disorder.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

A. Nigam, Counsel

INTRODUCTION

The Veteran served on active duty from October 1990 to December 1993.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, inter alia, denied service connection for a bilateral knee disorder.  Jurisdiction was subsequently transferred to the Cleveland, Ohio RO during the course of the appeal.

In July 2013, the Board remanded the claim for further development, to include scheduling the Veteran for a VA orthopedic examination.

The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.

REMAND

The July 2013 Board remand directives requested that the AOJ schedule the Veteran for a VA orthopedic examination.  However, the address for the Veteran used on the Compensation and Pension Exam Inquiry, dated September 4, 2013, is not the same as the Veteran's known address used during recent VA correspondence.  Moreover, a notice letter from the Board, dated in November 2013, was returned to sender in December 2013.  In light of the above, the Board finds that there is good cause for the rescheduling of the Veteran's examination.  38 C.F.R. �� 3.326, 3.327, 3.655; see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand).

Accordingly, the case is REMANDED for the following action:

1. Ensure that the Veteran's correct address is used in coordinating the following with VHA:

Schedule the Veteran for a VA orthopedic examination.  The claims file must be made available to, and reviewed by, the examiner.  All appropriate testing should be conducted.  The examiner should perform a thorough orthopedic evaluation and determine what disabilities the Veteran has in his bilateral knees, i.e., osteoarthritis, patellofemoral arthrosis, etc.

The examiner should also provide opinion as to the following:

(a) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee or left knee disorder had its clinical onset during active service or is related to any in-service disease, event, or injury (including the report of knee pain documented in the service treatment records).

(b) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was caused by his left knee disability.

(c) Whether it is at least as likely as not (50 percent or greater probability) that any current right knee disability was aggravated (meaning chronically worsened) by his left knee disability.  If so, please state, to the extent possible, the baseline level of severity of the right knee disability before the onset of aggravation.

(d) Whether it is at least as likely as not (50 percent or greater probability) that any current right or left knee disability was caused by his bilateral pes planus.

(e) Whether it is at least as likely as not (50 percent or greater probability) that any current right or left knee disability was aggravated (meaning chronically worsened) by his bilateral pes planus.  If so, please state, to the extent possible, the baseline level of severity of the bilateral knee disability before the onset of aggravation.

In providing this opinion, the examiner should consider the Veteran's complaints of bilateral knee pain since service.

The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions.  If the examiner is unable to answer any question with a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided.

2. Readjudicate the claim on appeal.  If the benefit remains denied, issue the Veteran and his representative a Supplemental Statement of the Case and allow for a reasonable period to respond.

The Veteran 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 Supp. 2013).

_________________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2013).