Citation Nr: 1236431 Decision Date: 10/22/12 Archive Date: 11/05/12 DOCKET NO. 05-33 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right foot disorder. 2. Entitlement to service connection for bilateral gynecomastia. 3. Entitlement to service connection for hypertension, including as secondary to a service-connected disability. 4. Whether new and material evidence has been received to reopen a claim of service connection for a back disorder. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1966 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a RO hearing in December 2005. A transcript of the hearing is associated with the claims files. The issues of service connection for a right foot disorder and entitlement to a TDIU rating are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran had an acute episode of gynecomastia (that resolved) in service; his current gynecomastia is not shown to be related to service, to include the manifestation therein. 2. Hypertension was not manifested in service or in the first year following the Veteran's discharge from active duty, and is not shown to be related to his service or to have been caused or aggravated by a service-connected disability, to include PTSD. 3. An unappealed January 2004 rating decision denied the Veteran's claim of service connection for degenerative disc spondylosis of the lumbar spine essentially on the bases that such disability was not manifested in, or shown to be related to, his service. 4. Evidence received since the January 2004 rating decision does not tend to relate the Veteran's current low back disability to his service; does not relate to an unestablished fact necessary to substantiate the claim; and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. Service connection for gynecomastia is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3, 307, 3.309, 3.310 (2011). 2. Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3, 307, 3.309, 3.310 (2011). 3. Evidence received since the January 2004 rating decision denying the Veteran's claim of service connection for a low back disability is not new and material, and such claim may not be reopened. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156(a), 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Mayfield v. Nicholson, 444 F 3d. 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the gynecomastia and hypertension claims, VCAA-compliant notice letters were issued in February and May 2008. The latter addressed the requirements for substantiating a secondary service connection claim. With respect to the low back claim, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Kent-compliant VCAA notice was provided in a May 2005 letter. The Veteran's pertinent service treatment records (STRs) and post-service treatment records have been secured. The RO arranged for VA examinations in 2007 (gynecomastia) and 2008 (hypertension secondary to PTSD). A June 2012 advisory medical opinion was obtained from the Veterans Health Administration (VHA) regarding the hypertension claim. Taken together, the findings of these medical examinations and medical opinions were detailed, took into account the relevant history, and are not charged to be inaccurate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (While the Virtual VA file includes 2011 and 2012 VA treatment records which list a low back disability and hypertension in the Veteran's list of problems and include a hypertensive medication in his list of current prescriptions, this evidence does not contain any evidence or correspondence material to the matters at hand, i.e. whether there is a relationship between these disorders and service.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include hypertension) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time postservice (one year for hypertension). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. As the Veteran's claim was pending prior to the effective date of the revised § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Bilateral gynecomastia The Veteran's STRs include a May 1968 treatment record which shows a one-month history of gynecomastia on the left and a two-week history of gynecomastia on the right. He was treated with tetracycline in July 1968, and an August 1968 surgical note recommended no surgical intervention with follow-up only if he had further enlargement, discharge, or fixation of the breast to the lower muscles. The June 1969 separation examination noted a clinical evaluation of the chest was normal. In his December 2007 claim, the Veteran reported that he had gynecomastia diagnosed in service and was still suffering from it 40 years later. To the extent that by his statements the Veteran seeks to establish service connection based on continuity of symptoms from an injury in service (see 38 C.F.R. § 3.303(c)), his account lacks credibility. 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"); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) ("Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness' testimony"). His December 2007 account reporting continuous manifestation of gynecomastia since service is self-serving. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). It also conflicts with his reports to treatment providers indicating that his gynecomastia was intermittent and quiescent for long periods. A June 2007 VA treatment record notes that the Veteran reported a six month (only) history of bilateral breast tenderness. The record also notes that the Veteran reported that he had symptoms [of gynecomastia] 4 years earlier (reflecting a more than three year gap in symptoms). A June 2002 treatment record notes that the Veteran reported a lump on his chest after bending over logs. The assessment was probable bruise due to trauma; he was to return to the clinic if it worsened. Significantly, on August 2003 VA Agent Orange examination it was specifically noted that the Veteran denied masses, lumps, pain, nipple changes, or nipple discharge. In June 2007, the breasts were positive for gynecomastia. An ultrasound revealed a small, 5 millimeter nodule at the site of his right breast tenderness. Treatment with Keflex was prescribed. The Veteran underwent a VA breast examination in July 2008. The examiner noted verbatim the June 2007 VA treatment record as well as the Veteran's reports that the problem began in service and has existed for years. Physical examination revealed a normal right breast and gynecomastia of the left breast. The examiner opined that "the [V]eteran's current gynecomastia is less likely than not related to his condition shown in service." The examiner explained, "There is a great lapse in time between the condition which was not present at discharge from the military service and the current gynecomastia. It is likely that the Veteran's use of finasteride for benign prostatic hypertrophy and his extreme obesity are the cause of his current gynecomastia." The Board finds this opinion highly probative as the examiner specifically noted that the claims folders were reviewed, and was aware of the Veteran's reported history; he summarized the relevant evidence, examined the Veteran, and thoroughly explained the rationale for his negative opinion. The Veteran is competent to give evidence about observable symptoms such as breast swelling. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, he is not competent to offer an opinion as to whether his current gynecomastia is related to the gynecomastia in service as the matter of a nexus between the current and remote gynecomastias is a complex medical question regarding the development of insidious soft tissue pathology. See Jandreau v. Nicholson, 492 F 3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board finds the preponderance of the evidence is against a finding that the Veteran's current gynecomastia is related to his service. As a preponderance of the evidence is against his claim, the benefit of the doubt doctrine does not apply, and the appeal seeking service connection for gynecomastia must be denied. Hypertension The Veteran asserts that his hypertension is due to his service-connected PTSD. In a July 2008 VA medical opinion, M. Uhr, M.D. stated that "the [V]eteran's hypertension is not secondary to his service related Post Traumatic Stress Disorder" and provided the rationale, cited from the Independent Study Course Post-Traumatic Stress Disorder: Implications for Primary Care (printed by the Veterans Health Initiative in the Department of Veterans Affairs) that "the existing data sho[w] that PTSD is associated with poor self-reported health and increased utilization of medical services . . . ." The examiner concluded, "However, it is premature to draw definitive causal conclusions about the effect of PTSD on physical health." Given the examiner's use of the close quotation marks following the word "health", it appears that the concluding sentence is a quote from the Independent Study Course (online at http://www.publichealth.va.gov/docs/vhi/posttraumatic.pdf). However, a review of that document did not reveal that specific statement. In support of his claim, in November 2008 the Veteran submitted a copy of another individual's April 2008 VA examination report and medical opinion prepared by a VA physician, C.P. Cole, M.D. Dr. Cole cited various medical literature and provided an opinion supporting that there was a nexus between this other Veteran's PTSD and his hypertension. Significantly, Dr. Cole specifically noted that the Veteran he examined lacked any primary, secondary, or inherited causes of hypertension. The materials Dr. Cole cited include: Risk of Selected Cardiovascular Diseases and Posttraumatic Stress Disorder among Former World War II Prisoners of War, Han K. Kang, PH, , Tim A. Bullman, MS, Judith W. Taylor, PhD (among former WWII POWs, risk of cardiovascular disease is related to having PTSD); Trauma, PTSD, and physical health: an epidemiological study of Australian Vietnam veterans, O'Toole Brian I., Catts Stanley V., J. Psychosom. Res. 2008 Jan; 64(1):33-40 (PTSD is associated with a pattern of physical health outcomes); Stress: A risk factor for serious illness, Theodore B. VanItallie; and Posttraumatic stress disorder, exposure to combat, and lower plasma cortisol among Vietnam veterans: findings and clinical implications, Boscarino Joseph A., J. Consult. Clin. Psychol. 1996 Feb;64(1):191-201; and Abnormal noradrenergic function in posttraumatic stress disorder, Southwick SM, Krystal JH, Morgan CA, Johnson D, Nagy LM, Nicolaou A, Heninger GR, Charney DS., Arch Gen Psychiatry. 1993 Apr;50(4):266-74. Because of the apparent conflict in the medical literature as interpreted by Drs. Uhr and Cole and because no opinion included a rationale that addresses the particular circumstances of the Veteran's case, in May 2012, the Board sought a medical advisory opinion from the Veteran's Health Administration (VHA) as to whether there is a relationship between the Veteran's PTSD and his hypertension. S. J. Duensing, M.D., a VA board-certified internist who reviewed the Veteran's 7-volume claims file and the medical references noted above, provided the opinion sought in June 2012. Dr. Duensing cited additional medical literature reviewed, including: Association of cardiovascular risk factors with mental health diagnoses in Iraq and Afghanistan war veterans using VA health care, Cohen BE, Marmar C, Ren L, et al. JAMA; 302:489-92 (2009); "Stress" and coronary heart disease: psychosocial risk factors, Bunker, SJ, Colquhoun, DM, Esler, MD, Med. J. Aust.; 178: 272-76 (2003); Sustained blood pressure increase after an acute stressor: the effects of the 11 September 2001 attack on the New York City World Trade Center, Gerin W, Chaplin W, Schwartz, JE, J. Hypertens.; 23: 279-84 (2005); and Cardiovascular manifestations of posttraumatic stress disorder, Bedi US, Arora R, J. Natl. Med. Assoc.; 99:642-49 (2007). Citing several of the medical studies she reviewed, Dr. Duensing found that "[t]he evidence in the medical literature, particularly of the most recent literature, is that there is a link between PTSD and the risk of hypertension." To that extent, Dr. Duensing agreed with Dr. Cole. "However," Dr. Duensing continued, "in the specific case of the veteran in question, I find it is less likely as not (a less than 50% probability) that the veteran's hypertension was caused or aggravated by his service connected PTSD." Dr. Duensing explained: Rationale: The veteran has many known risk factors for hypertension including race, aging, morbid obesity, obstructive sleep apnea, and a positive family history. In addition, even when the Veteran had an acute event requiring hospitalization for depression and PTSD when the diagnosis of PTSD was made in 12/2005, his blood pressure was not particularly elevated, and certainly did not require treatment for hypertension. And therefore, although it is true that PTSD appears to be a significant risk factor for hypertension in this particular veteran, he did not have a hypertensive response to stress documented in the chart. Even prior to treatment for PTSD, as documented in the clinical record from 1984-2007 when essential hypertension was diagnosed, there is no evidence PTSD symptoms affected blood pressure control adversely. Therefore in this veteran there is no evidence of any cause of elevated blood pressure/hypertension or aggravation of hypertension by service connected PTSD. Thus, as the Veteran in this case has many known risk factors for hypertension, whereas the Veteran examined by Dr. Cole had none, the instant case is clearly distinguishable from that of the Veteran examined by Dr. Cole. The evidence of record clearly shows that the Veteran has hypertension. However, there is no evidence, and the Veteran does not contend, that the hypertension was manifested in service or in the first postservice year. Consequently, direct service connection for hypertension (i.e., on the basis that it became manifested in service and persisted or on a presumptive basis under 38 U.S.C.A. § 1112) is not warranted. The evidence does not show, and the Veteran does not assert, that service connection based on a continuity of symptoms (see 38 C.F.R. § 3.303(b)) is warranted. Regarding secondary service connection, the record contains conflicting evidence, but the preponderance of the evidence is against a finding that the Veteran's hypertension was caused or aggravated by his service-connected PTSD. The "positive" evidence in this regard consists of the April 2008 medical opinion of Dr. Cole which addressed the circumstances pertaining to another Veteran (and not the Veteran herein), and the medical literature, acknowledged by Dr. Duensing, to the effect that there is a relationship between PTSD and hypertension. With respect to the medical literature, the Board notes that medical treatise evidence can, in some circumstances, constitute competent medical evidence. See Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, the medical literature cited by Drs. Uhr, Cole, and Duensing, is of a general nature and does not contain information or analysis specific to the Veteran's case. Likewise, the April 2008 medical opinion authored by Dr. Cole does not contain any information or analysis specific to the Veteran's case, and as noted above, clearly addresses the circumstances of another individual with a very different medical history from that of the Veteran. For these reasons, the "positive" evidence is this case has little, if any, probative value. The United States Court of Appeals for Veterans Claims (CAVC or Court) has held that medical evidence which is speculative, general, or inconclusive in nature cannot support a claim. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In contrast, Dr. Duensing's "negative" June 2012 VA medical advisory opinion specifically found that it was less likely than not that the Veteran's PTSD caused or aggravated his hypertension. This opinion is based on extensive review of the Veteran's voluminous claims folders as well as the pertinent medical literature, including the medical literature cited elsewhere in the record. Dr. Duensing's opinion has a clearly defined rationale based on information or analysis specific to the Veteran's case. Specifically, she noted his many known, non-PTSD risk factors for hypertension and the fact that the medical evidence of record shows that the Veteran does not have a hypertensive response to stress. For these reasons, the Board finds that Dr. Duensing's "negative" opinion is more persuasive and is entitled to much greater probative value than the "positive" evidence in this case. Bloom v. West, 12 Vet. App. 185, 187 (1999) (The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion."). Finally, while the Veteran clearly believes that his PTSD caused or aggravated his hypertension, as a layperson, he is not competent to give an opinion as the issue involves a highly complex medical question regarding the development of insidious cardiovascular pathology. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In summary, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the appeal in this matter must be denied. New and material claim An unappealed January 2004 rating decision denied the Veteran service connection for degenerative disc spondylosis of the lumbar spine because there was no evidence of such disability in service and because a medical opinion found that such disability was not related to service or a service-connected disability. The Veteran did not appeal the decision, so it is final. See 38 U.S.C.A. § 7105. In addition, no new and material evidence was received within one year following notice of the January 2004 rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, No. 2010-7096, 2011 WL 4684291 (Fed. Cir. Oct. 7, 2011); 38 U.S.C.A. § 7105. The record shows that additional VA treatment records showing complaints and treatment for low back pain, including a July 2004 MRI of the lumbosacral spine showing spondylosis, were developed within one year following notice of the January 2004 rating decision. However, this evidence was cumulative, and not material; none pertained to whether there was a lumbar spine disability in service or whether the current lumbar spine disability is related to service or a service-connected disability. Hence, the additional evidence received within a year of notification of the January 2004 decision was not new and material, so 38 C.F.R. § 3.156(b) is not for application. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decision makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the Board's analysis of the issue of reopening must first be confined to the subject of existence of new and material evidence alone and must not be an outcome-based decision. In Shade, the claim was denied originally because there was no present disability and the evidence submitted to reopen showed the Veteran currently had the claimed disability. The Court held the claim was to be reopened because new and material evidence was submitted even though there was still no nexus opinion of record. Id. Evidence of record at the time of the January 2004 rating decision included the Veteran's STRs and post-service VA and private treatment records. The Veteran does not contend, and the STRs do not show, that he sustained a back injury in service. At the time of his 2003 VA examination, the Veteran reported that he injured his back in 1999 when he twisted to the right to relieve pain in his service-connected left knee. X-ray revealed degenerative changes in the lumbar spine. The 2003 VA examiner concluded that the Veteran's back problem was less likely than not due to service or a service-connected disability. Evidence received since the January 2004 rating decision includes VA treatment records. A November 2005 record notes that the Veteran reported back pain after falling off stairs a month previously. Since service connection for a back disability was previously denied on the basis that the Veteran's current low back disability is unrelated to his service or to a service-connected disability, in order for additional evidence received to pertain to the unestablished fact necessary to substantiate the claim (i.e., be new and material), it would have to tend to show that the Veteran's current back disability is indeed related to his active service or to a service-connected disability. None of the new evidence tends to do so. The recent VA progress notes only address the current status of the disability; they do not address any potential relationship between such disability and service or a service-connected disability. The Board finds that the evidence received since the last final decision is not new and material. What was missing at the time of the January 2004 rating decision is still missing: an etiological link between the current disability and a period of active service or a service-connected disability. Consequently, the Board concludes that new and material evidence sufficient to reopen the claim has not been received. While the Veteran insists that he has low back problems due to his service-connected knee, the objective evidence does not support his assertions. For example, the November 2005 record indicates that low back pain is due to a post-service injury. This evidence is against the Veteran's claim, not probative of it. Although the Veteran has submitted new evidence that was not before VA at the time of the last final decision, such evidence is not material and does not raise a reasonable possibility of substantiating the claim. Given that the newly submitted evidence does not pertain to the unestablished fact necessary to substantiate the claim (i.e. a nexus between service and current low back disability) and does not raise a reasonable possibility of substantiating the claim, it is not new and material evidence. Accordingly, the claim seeking service connection for a low back disability may not be reopened. ORDER Service connection for bilateral gynecomastia is denied. Service connection for hypertension is denied. The appeal to reopen a claim of service connection for a low back disability is denied. REMAND Regarding a right foot disorder, the May 2011 supplemental statement of the case (SSOC) incorrectly characterized the issue as whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a right foot disorder. Given this material defect in the most recent SSOC, on remand, a corrective SSOC addressing the matter should be issued. 38 C.F.R. § 19.31(b)(1). The matter of entitlement to a TDIU rating is inextricably intertwined with the service connection claim being remanded, and consideration of the appeal seeking a TDIU rating must be deferred pending the resolution of such claim. Further, a contemporaneous examination to evaluate the cumulative impact of the Veteran's service connected disabilities on his employability is needed. Accordingly, the case is REMANDED for the following action: 1. The RO should then arrange for the Veteran to be examined by an appropriate physician to assess the impact of all his service connected disabilities (PTSD, degenerative joint disease of the right knee, post total knee replacement, residuals of an injury to the left knee with degenerative joint disease, tinnitus, residuals of malaria, and bilateral hearing loss) on his employability. The Veteran's claims files must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should: (a) Discuss the functional limitations associated with, and expected impact on employment resulting from, each of the Veteran's service-connected disabilities. (b) Discuss the functional limitations associated with, and expected impact on employment resulting from, the Veteran's service-connected disabilities cumulatively. (c) Identify the types of employment that would be inconsistent with/precluded by the cumulative functional limitations due to the service-connected disabilities and those types of employment, if any, that would remain feasible despite the cumulative effect of the service-connected disabilities (and in light of the Veteran's employment history and educational and vocational attainment). The examiner must explain the rationale for all opinions. 2. Then RO should then re-adjudicate the claims remaining on appeal. If either remains denied, the RO should issue an appropriate SSOC (addressing the right foot issue de novo) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs