Citation Nr: 0004778 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 96-35 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the lumbosacral spine. 2. Entitlement to service connection for a respiratory disorder to include asthma. 3. Entitlement to service connection for a bilateral foot disorder to include bone spurs of the heels. 4. Entitlement to service connection for a bilateral ankle disability. 5. Entitlement to service connection for a right shoulder disorder. 6. Entitlement to service connection for a left shoulder disorder. 7. Entitlement to service connection for a right knee disorder. 8. Entitlement to service connection for headaches. 9. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee, on appeal from the initial evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Herman, Associate Counsel INTRODUCTION The veteran had active military service from September 1974 to June 1994. This appeal arises from a February 1995 rating decision of the Buffalo, New York, regional office (RO) which denied service connection for a right shoulder condition, left shoulder condition, asthma, headaches, bone spurs of the feet, and degenerative joint disease of multiple joints, and which assigned a 10 percent disability evaluation for degenerative joint disease of the left knee, after granting service connection for the same. On May 25, 1999, a hearing was held at the RO before Barbara B. Copeland, who is a member of the Board of Veterans' Appeals (Board) rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102 (West Supp. 1999). The Board is separately considering the issues of service connection for bilateral ankle and right knee disabilities as the veteran indicated at his May 1999 hearing that his claim for service connection for degenerative joint disease included these joints, as well as the lumbar spine and shoulders. In view of the Board's finding that additional development is warranted, the issues of service connection for a left shoulder disorder, right shoulder disorder, and right knee disorder will be discussed in the Remand portion of this decision. FINDINGS OF FACT 1. The evidence of record establishes that the veteran was diagnosed as having degenerative joint disease of the lumbosacral spine within one year of his service discharge. 2. There is medical evidence suggesting that the respiratory and asthmatic problems currently suffered by the veteran may have had their onset during his military service. 3. There is evidence that the veteran received inservice treatment for complaints of bilateral foot and ankle pain, and that he was diagnosed as having osteoarthritic changes of the feet and ankles at that time. 4. There is post-service evidence showing that the veteran continues to complain of bilateral foot and ankle pain. 5. At his discharge examination, the veteran gave a history of chronic headaches. 6. While a VA examiner has opined that the veteran's post- service complaints of headaches are probably tension headaches, the examiner also indicated that the veteran's service-connected hypertension may contribute to his headache problem. CONCLUSIONS OF LAW 1. Degenerative joint disease of the lumbosacral spine is presumed to have been incurred during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). 2. The claim of entitlement to service connection for a respiratory disorder to include asthma is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of entitlement to service connection for a bilateral foot disorder to include bone spurs of the heels is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 4. The claim of entitlement to service connection for a bilateral ankle disability is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 5. The claim of entitlement to service connection for headaches is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reflect that the veteran received evaluations and treatment for complaints of low back pain, respiratory problems, bilateral foot and ankle pain, and headaches. Of note, he was seen in November 1987 for complaints of low back pain. He said the pain had had its onset from running and was exacerbated after playing basketball. He denied radiculopathy. He had a full range of motion but was tender to extension and bending to the left. There was no pain to palpation. The assessment was lumbosacral strain. In March 1989, the veteran injured both his feet when he landed hard during a parachute jump. He complained of pain in both feet. An examination of the right foot revealed no swelling, discoloration, or deformity. There was tenderness over the dorsal portion of the foot and in the tendon of the tibialis area. There was also tenderness on plantar flexion. With regard to the left foot, there was tenderness in the anterior ligament area and with inversion rotation. Swelling was positive. The impression was mild contusion of the anterior ligament of the right foot and a left sprained ankle. An x-ray of the right foot showed a small plantar calcaneal spur. In November 1992, the veteran was evaluated for complaints of a chronic cough. He reported being treated for pneumonia while stationed in Saudi Arabia. He said he had been experiencing his cough since that time. His lungs were clear in all fields. The assessment was bronchitis with a questionable degree of chronicity. An addendum indicated that a chest x-ray had been normal. The veteran was afforded a periodic physical examination later that month. He gave a history of a chronic productive cough, exercise-induced asthma, left foot problems, and arthritis. He stated his asthma began in 1981 when he was stationed in Greece. His lungs, feet, lower extremities, spine, and neurological system were found to be normal. However, the examiner did list some defects and diagnoses suffered by the veteran, to include recurrent bronchitis, exercise-induced asthma, and status post pneumonia. On a Report of Medical History pending service discharge, the veteran maintained that he suffered from headaches for "no apparent reason." He stated he had been experiencing chronic respiratory problems since his return from Saudi Arabia. Similarly, the veteran reported being diagnosed as having exercise-induced asthma after returning from Greece in the 1980s. He further indicated that he experienced problems with his feet. The examiner noted that the veteran had a history of low back pain and ankle sprains following airborne jumps. Despite the foregoing, evaluations of the veteran's feet, lungs, neurological system, and spine were noted to be normal. A chest x-ray was negative. In June 1994, the veteran requested that his complaints of foot and ankle pain be documented by x-ray. There was no evidence of swelling of the ankles. The arches of both feet were elevated. X-rays showed osteoarthritic changes of both feet and ankles. In August 1994, the veteran filed a claim of service connection for multiple conditions to include degenerative joint disease, the residuals of bilateral sprained ankles, bone spurs of the feet, respiratory problems, asthma, and the residuals of a head injury to include headaches. The veteran was afforded a VA orthopedic examination in October 1994. He stated he suffered from arthritis of the cervical spine, lumbosacral spine, both knees, and both ankles. A physical examination was performed. Range of motion of the lumbar spine was within normal limits. There were no findings made with regard to the feet or ankles. X- rays showed minimal degenerative changes of the lumbar spine with spurring noted anteriorly at L4-5. The lumbar spine also appeared to be somewhat straightened with the loss of the normal lumbar lordosis. The diagnosis, in pertinent part, was minimal changes in the lumbar spine. In November 1994, the veteran was afforded a VA general medical examination. He said his main problem involved exercise-induced asthma and recurrent sinusitis. He maintained that he developed exercise-induced asthma in 1981 after returning from a tour of duty in Greece. He indicated that his brother, a family physician, had diagnosed the asthma and prescribed Ventolin. The veteran stated he developed pneumonia while serving in Saudi Arabia, and that he had been suffering from an increased amount of upper respiratory infections since that time. His lungs and throat were clear. His nose looked somewhat reddened and dry. Pulmonary function testing and chest x-rays were noted to be within normal limits. The examiner concluded that the veteran had no asthma or chronic obstructive pulmonary disease, but that he could have exercise-induced bronchospasm. The veteran was also provided a VA neurological examination in November 1994. At that time, he gave a history of degenerative joint disease, hypertension, sinus problems, asthma, and a head injury. He complained of low back pain as well as pain of both knees and ankles. He said he had been experiencing headaches since 1988. The veteran described his headaches as being like a band around his head. He denied nausea, vomiting, photophobia, or phonophobia. He stated the headaches occurred three to four times a month. He said his headaches were occasionally exacerbated by changes in temperature. He indicated he had injured his head during parachute jumps. He denied any loss of consciousness or change in visual acuity. His blood pressure was 170/125, despite his use of medication. The veteran's neurologic examination was non-focal. The assessment was probable tension headaches. However, the examiner stated that the veteran's high blood pressure could be contributing to the headaches. By a rating action dated in February 1995, service connection for bone spurs of the feet, the residuals of bilateral ankle sprains, asthma, headaches, and degenerative joint disease was denied. The RO determined there was no evidence that the veteran's exercise-induced asthma, headaches, or degenerative changes of the lumbar spine were incurred during the veteran's military service. The RO also found that the veteran had failed to submit evidence showing a current disability of the ankles or feet. Service connection for hypertension was granted. In a letter received in March 1996, G.A., M.D. reported that he had initially become involved with the veteran's medical care in 1983. He stated that the veteran had developed periodic wheezing during a tour of duty in Greece. He said his condition improved when he returned to the United States. However, whenever he did significant exercise, Dr. A stated the veteran would develop mild wheezing, some chest tightness, and a cough. He said that these symptoms represented exercise-induced asthma, and that the veteran was treated with a Ventolin inhaler. Following the veteran's service in Saudi Arabia, he reported that the veteran had experienced an increased frequency of bronchial infections. Dr. A opined that the veteran suffered from exercise-induced asthma due to his exposure to the air pollution of Greece. He further stated that the veteran developed chronic bronchitis, with acute exacerbations, secondary to infections he developed while stationed in Saudi Arabia. In October 1997, the RO continued the denial of the claims on appeal. A supplemental statement of the case was mailed to the veteran that same month. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during a period of war, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be addressed in this case is whether the veteran has presented evidence of a well-grounded claim. If the veteran has not presented a well-grounded claim, the appeal must fail because the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a commonsense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Id. at 81. However, to be well grounded, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-263 (1992). The Court has held that evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded. Exceptions to this rule occur when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. A claim for service connection requires three elements to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in-service injury or disease and the current disability (medical evidence). The third element may be established by the use of statutory presumptions. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the veteran. King v. Brown, 5 Vet. App. 19, 21 (1993). If a reasonable doubt arises regarding service origin, or any other point, it should be resolved in the veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. A. Lumbosacral Spine The veteran has satisfied the threshold requirement of presenting a well-grounded claim of service connection for degenerative joint disease of the lumbosacral spine within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has set forth a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). As referenced above, 38 C.F.R. §§ 3.307 and 3.309 provide that arthritis shall be presumed to have been incurred in service when said disease becomes manifest to a degree of 10 percent within 1 year from date of service discharge. There is no need to provide actual evidence that arthritis had been diagnosed in service. The report of the October 1994 x-rays of the lumbosacral spine showed minimal degenerative changes of the lumbar spine with spurring anteriorly at L4-5. Degenerative arthritis established by X-ray findings is to be evaluated based on the limitation of motion of the joint, but if the limitation of motion is noncompensable under the applicable diagnostic code, the disorder is evaluated at 10 percent. In the absence of limitation of motion, with X-ray involvement of two or more major joints or two or more minor joint groups, a 10 percent evaluation is assigned. See 38 C.F.R. § 4.71, Diagnostic Code 5003 (1999). In the present case, the evidence of record clearly shows the veteran has been diagnosed as having degenerative joint disease of the lumbar spine and left knee to a compensable degree within 1 year of his service discharge. Limitation of motion of the lumbar spine and left knee was not specifically reported, but there is involvement of more than one major joint or minor joint group. Service connection for degenerative joint disease of the lumbar spine is therefore established. B. Respiratory Disorder to Include Asthma Here, the record shows that the veteran was treated for recurrent upper respiratory infections in service, and that he was diagnosed as having possible chronic bronchitis and a history of exercise-induced asthma. There is also evidence that the veteran currently suffers from exercise-induced bronchospasm, exercise-induced asthma, and chronic bronchitis. The first two criteria of the Caluza test have therefore been satisfied. Finally, with regard to medical evidence of a nexus between the inservice respiratory problems and a current disability, Dr. A stated in February 1996 that the veteran's exercise- induced asthma had been caused by his exposure to unusually high levels of pollution when he was stationed in Greece. He further opined that there was a direct correlation between the upper respiratory infections the veteran received treatment for in service and the chronic bronchitis condition from which he currently suffered. Dr. A indicated that he had been sporadically treating the veteran since 1983. Under these circumstances, the Board finds that there is evidence that the veteran experienced respiratory problems in service. There is also evidence that the veteran currently suffers from exercise-induced asthma and chronic bronchitis, which have been suggested by a medical professional to be linked to the veteran's military service. Accordingly, the Board finds that the veteran has presented a claim for service connection for the respiratory problems to include asthma which is well grounded. C. Bilateral Foot and Ankle Disorders In this case, the veteran's service medical records show that the veteran was evaluated for complaints of pain in both feet and ankles. There is also an indication that the veteran appears to have been found to have osteoarthritic changes of both feet and ankles shortly before his service discharge . There is also evidence that the veteran continues to complain of bilateral foot and ankle pain. Finally, although a diagnosis confirming the chronic nature of a disability of the feet and ankles is not of record, the Board finds that the veteran is competent to provide evidence regarding continuity of symptomatology for purposes of 38 C.F.R. § 3.303(b). See Savage v. Gober. The veteran reported his problem with pain of both feet and ankles in service and in his original claim for VA compensation which was within two (2) months of his June 1994 discharge from service. In view of the consistency between the veteran's contentions and the medical evidence presented, and the proximity of the veteran's filing of his claim to the date of his separation from service, the Board finds that the veteran has presented claims for service connection for a bilateral foot disorder to include bone spurs of the heels and a bilateral ankle disability which are well grounded. D. Headaches In addition to the foregoing, service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Establishing service connection on a secondary basis requires evidence sufficient to show that (1) a current disability exists and (2) the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); See also Allen v. Brown, 7 Vet. App. 439 (1995). The record in the present case shows that the veteran complained of having a history of headaches at the time of his discharge examination. There is also post-service evidence that he has been diagnosed as having tension headaches. Moreover, the neurological examiner indicated that the veteran's service-connected hypertension could be a contributing factor to his headache condition. Accordingly, the Board finds that the veteran has submitted sufficient evidence showing that his headache problem may have had it onset inservice or, at the very least, may be aggravated by his service-connected hypertension to make such a claim plausible. The Board concludes, therefore, that the veteran's claim of entitlement to service connection for headaches is well grounded. ORDER Entitlement to service connection for degenerative joint disease of the lumbosacral spine is granted. To the limited extent that the veteran's claim of entitlement to service connection for a respiratory disorder to include asthma is well grounded, the appeal is granted. To the limited extent that the veteran's claim of entitlement to service connection for a bilateral foot disorder to include bone spurs of the heels is well grounded, the appeal is granted. To the limited extent that the veteran's claim of entitlement to service connection for a bilateral ankle disability is well grounded, the appeal is granted. To the limited extent that the veteran's claim of entitlement to service connection for headaches is well grounded, the appeal is granted. REMAND Because the claims of entitlement to service connection for a respiratory disorder to include asthma, a bilateral foot disorder to include bone spurs of the heels, a bilateral ankle disability and headaches are well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Specifically, the Court has held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes the procurement of medical records to which the veteran has made reference. Littke v. Derwinski, 1 Vet. App. 90 (1990). The development of facts includes a "thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As the Board has discussed in the present case, a private physician expressed his opinion in a February 1996 letter that the veteran's exercise-induced asthma and chronic bronchitis are etiologically related to his military service. Similarly, a VA neurological examiner appears to have associated the veteran's current headache problem to his service-connected hypertension. Thus, as medical evidence has been received which appears to implicitly link the veteran's respiratory problems to his military and his headaches to his service-connected hypertension, the Board believes that these claims must be remanded to obtain a medical opinion to determine the nature and etiology of his current respiratory and headache conditions. Further, because there is some evidence of continuity of symptomatology between the inservice treatment for foot and ankle injuries, to include findings of osteoarthritis of the feet and ankles, and the veteran's current complaints of pain of both feet and ankles, a medical opinion is needed on the nature and etiology of these disorders. The Court has held that the Board, in rendering its final decision, must consider independent medical evidence in support of recorded findings, rather than provide its own medical judgment in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The duty to assist also includes the procurement of a medical opinion where necessary. See Ashley v. Brown, 6 Vet. App. 52 (1993) (obtaining an advisory medical opinion is a viable way for the Board to fulfill its duty to assist an appellant). With regard to the claims of service connection for a left shoulder disorder, right shoulder disorder, and right knee disorder, a review of the record shows that the veteran has repeatedly indicated that he received treatment for various conditions (including those for which he is claiming service connection) through the Fayetteville VAMC. In a statement received in April 1999, his representative specifically asked that the veteran's treatment records from this facility be obtained and reviewed. There is no evidence that the RO has attempted to obtain the veteran's VA medical records from the Fayetteville VAMC. As VA treatment records are considered to be constructively included within the record, and must be acquired if material to an issue on appeal, it is necessary to obtain the aforementioned medical records prior to a final decision in this case. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). With regard to the veteran's claim for a disability evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee, the Board notes that the veteran was last afforded a VA orthopedic examination in October 1994. That examination is inadequate for the purpose of evaluating the veteran's left knee disability. The Court has held that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). The Board notes that the Court has held that a veteran can be rated separately for different manifestations of the same injury, where "none of the symptomatology for any one of [the] conditions is duplicative of or overlapping with the symptomatology of the other two conditions," and that such combined ratings do not constitute pyramiding prohibited by 38 C.F.R. 4.14 (1998). See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Regarding the knee, the VA Office of General Counsel has found that instability contemplated under Diagnostic Code 5257 of VA's Schedule for Rating Disabilities does not overlap with limitation of motion caused by arthritis under Diagnostic Code 5002, and, therefore, separate evaluations may be assigned. VAOPGCPREC 23-97 (July 1997). In this regard, the report of the aforementioned VA orthopedic examination indicated that the veteran experienced some instability of the left knee. At his May 1999 personal hearing before the undersigned, the veteran stated that he experienced a limited range of motion of the left knee. He said his problems were worse with stair climbing. The RO should therefore give careful consideration to the General Counsel opinion in its re-adjudication of this matter. In the instant case, the Board observes that the October 1994 examination did not adequately evaluate the veteran's complaints of pain on movement and use as required by DeLuca v. Brown, 8 Vet. App. 202 (1995). Therein, the Court held that in evaluating a service-connected disability involving a joint rated on the basis of limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. § 4.40 and § 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Accordingly, as the RO must consider a separate rating for arthritis of the knee, the veteran should be afforded another VA orthopedic examination. Although he has been examined previously for VA purposes, the importance of the new examinations to ensure adequate clinical findings should be emphasized to the veteran. The veteran is henceforth advised that failure to report, without good cause, for an examination scheduled in connection with a claim for an increased rating may result in denial of that claim. 38 C.F.R. § 3.655 (1999). Finally, as a part of his August 1994 claim for compensation, the veteran raised the issue of service connection for fatigue and respiratory problems due to an undiagnosed illness. By a rating action dated in February 1995, the RO denied service connection for "Persian Gulf Syndrome." The veteran was sent notice of this decision on February 13, 1995. In a statement received on February 13, 1996, the veteran indicated that he had received notice of the February 1995 decision, and that he disagreed with the decision to deny service connection for Persian Gulf Syndrome. He asserted that his headaches, chronic fatigue, and respiratory problems were all "symptoms" of his Gulf War illness. The Board construes the February 1996 statement as a notice of disagreement with the February 1995 rating decision. To date, there is no evidence that the appellant has been furnished a Statement of Case on the issues of service connection for headaches, chronic fatigue, and respiratory problems due to an undiagnosed illness. As the filing of a notice of disagreement places a claim in appellate status, the Court has held that the RO's failure to issue a Statement of the Case is a procedural defect requiring remand. See Manlincon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 5 Vet. App. 127, 132 (1993). Although further delay is regrettable, under the circumstances described above, additional development is considered necessary. Therefore, this case is Remanded to the RO for the following development: 1. The RO should contact and advise the veteran that he may submit medical evidence that would help to establish an etiological relationship between his chronic foot pain, chronic ankle pain, respiratory problems, and headaches and his military service. The veteran should be asked to submit the names and addresses of all VA and non-VA medical care providers who have treated him for his bilateral foot disorder to include bone spurs of the heels, bilateral ankle disability, respiratory disorder to include asthma, and/or headaches since service discharge. The RO should also obtain the names and addresses of all VA and non-VA medical care providers who have treated the veteran for his service- connected degenerative joint disease of the left knee since service discharge. All records not already incorporated in the claims folder should be obtained, to include those from Dr. A. 2. The RO should obtain all outpatient treatment records from the Fayetteville VAMC, Syracuse VAMC, Watertown VA Outpatient Clinic, and any other identified VA medical facility since 1996. Once obtained, all records must be associated with the claims folder. 3. The RO should schedule the veteran for special VA pulmonary, neurological, and orthopedic examinations. The veteran and his representative should be notified of the date, time, and place of the examinations in writing. A copy of the notification letter(s) should be associated with the claims file. Prior to the examinations, the claims folder must be made available to the examiners for review. Such tests as the examiner deems necessary should be performed. a. Special instructions for the pulmonary examiner: The examiner should determine the correct diagnosis of the veteran's respiratory disorder. The examiner should be asked to state whether it is at least as likely as not that there is an etiological relationship between any current respiratory disorder, to include exercise-induced asthma, and the veteran's complaints of chronic upper respiratory infections and asthma during his military service. In doing so, the examiner should also attempt to reconcile his or her conclusions with the February 1996, opinion rendered by Dr. A. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. b. Special instructions for the neurological examiner: The examiner should determine the correct diagnosis of the veteran's headache disorder. A complete history should be recorded. The examiner should express an opinion as to whether it is at least as likely as not that any current headache condition suffered by the veteran had its onset in service. Furthermore, the examiner should comment on whether it is at least likely as not that the veteran's headaches have been aggravated by his service-connected hypertension. The examiner should also attempt to reconcile his or her conclusions with the November 1994 VA neurological examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. c. Special instructions for the orthopedic examiner: The examiner should address each matter below. No instruction/question should be left unanswered. If the examiner finds that it is not feasible to answer a particular question or follow a particular instruction, he or she should so indicate and provide an explanation. I. The examiner should determine the correct diagnosis of the veteran's bilateral foot and ankle disorders. The examiner should be asked to state whether it is at least as likely as not that there is an etiological relationship between the veteran's inservice treatment for complaints of foot and ankle pain (with the apparent discovery of osteoarthritis in those areas) and his current complaints of chronic pain in both feet and ankles. In answering this question, the standard of proof that is underlined must be utilized. II. The examination must include measurements of the ranges of motion of the left knee in degrees, with normal flexion being to 140 degrees and normal extension being to 0 degrees. III. The examiner should state whether the cartilage of the left knee is dislocated, with frequent episodes of "locking," pain, and effusion into the joint. IV. If lateral instability or subluxation of the left knee is present, it should be described as either mild, moderate, or severe. V. The examiner should be asked to determine whether arthritis of the knee is present and, if so, a manifestation of the service- connected disability and whether the left knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. VI. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the left knee is used repeatedly over time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. 4. The RO should furnish the veteran and his representative with a Statement of the Case (SOC) on the issues of entitlement to service connection for headaches, chronic fatigue, and respiratory problems due to an undiagnosed illness. The SOC should thoroughly discuss all evidence received since the December 1997 rating decision, including the findings of a February 1998 VA Gulf War Registry examination. The SOC should include citations to all pertinent regulations. There should also be included with this document information concerning the need to file a substantive appeal to these issues if the Board is to address them. A VA Form 9 should be provided for the veteran's use. The veteran must be informed that he must file a substantive appeal to the SOC if he wishes the Board to consider the issues addressed therein. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies or opinions requested, appropriate corrective action is to be implemented. 6. When the above developments have been completed, the case should be reviewed by the RO. Consideration should be given to the above referenced General Counsel Opinion in which it was determined that a claimant who has knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257. See VAOPGCPREC 23-97. The RO should also discuss the recent case of Fenderson v. West, 12 Vet. App. 119 (1999). Therein, the Court held that, with regard to initial ratings following the grant of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. If any issue on appeals remains adverse to the veteran, he and his representative should be issued a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond. The SSOC should include citation to all relevant regulatory provisions. If appropriate, the SSOC should also include the provision of 38 C.F.R. § 3.655. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to afford due process and to obtain additional medical evidence. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BARBARA B. COPELAND Member, Board of Veterans' Appeals