Citation Nr: 0735681 Decision Date: 11/13/07 Archive Date: 11/26/07 DOCKET NO. 03-36 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation status post meniscectomy of the left knee with arthritis, rated 30 percent disabling. 2. Entitlement to an increased evaluation for status post medial collateral ligament repair of the right knee with arthritis, rated 30 percent disabling. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and a private physician ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran served on active military duty from October 1979 to October 1982. The appeal comes before the Board of Veterans' Appeals (Board) from a November 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in pertinent part denying an increased evaluation for service-connected left and right knee disorders, rated 30 and 20 percent disabling, respectively, and denying service connection for diabetes mellitus. By a September 2003 statement of the case (SOC) the RO granted an increased evaluation to 30 percent disabling for the right knee disorder. In the course of appeal, in May 2007, the veteran and a private physician testified at a video conference hearing before the undersigned Acting Veterans Law Judge, conducted between the RO and the Board Central Office. A transcript of that hearing is contained in the claims folder. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The left knee disorder is manifested by pain, fatigue, weakness, and lack of endurance, which together produce severe impairment of the knee. Separate or additional disability is not shown by the weight of the evidence beyond ankylosing-associated limitation of extension equivalent to limitation of extension to 10 degrees. 2. The right knee disorder is manifested by pain, weakness, and lack of endurance, which together produce severe impairment of the knee. Separate or additional disability in the knee is not shown by the weight of the evidence. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than the 30 percent assigned for the left knee disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5260, 5261, 5262 (2007). 2. An additional (separate) 10 percent evaluation for a left knee disorder is warranted, based on limitation of extension. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5261 (2007). 3. The criteria for an evaluation greater than the 30 percent assigned for the right knee disorder are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5260, 5261, 5262 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 notice from VA 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a March 2001 letter addressing issues here adjudicated, the RO informed the veteran of its duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims. This letter satisfied all four notice requirements of the VCAA. The letter informed of the evidence required to substantiate the claims for increased evaluations for left and right knee disorders. See 38 C.F.R. Part 4. It also informed what evidence VA would seek to provide and what evidence the veteran was expected to provide. Also by these letters, the veteran was requested to submit any evidence in his possession, in furtherance of his claims. He was also told that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, Dingess notice was provided in a March 2006 letter. Although the prior VCAA notice did not address the downstream issue of effective date as pertinent to the appellant's claims, such errors are harmless to the extent an increased evaluation is here denied. With regard to the grant here of a separated 10 percent evaluation for a left knee disorder based on ankylosis-associated limitation of extension, the veteran will have opportunity to address and/or contest any effective date assigned, which is not done by this decision, but rather will be addressed by a subsequent RO decision effectuating the Board's decision. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The March 2001 letter requested that the veteran advise of any VA and/or private medical sources of evidence pertinent to his claims, and to provide necessary authorization to obtain those records. They also requested evidence and information about treatment after service, in support of the claims. VA and service medical records have been obtained and associated with the claims folders. The veteran informed of additional private medical sources, and records were requested from sources for which the veteran provided authorization to obtain those records. All records received were associated with the claims folders, and the veteran was duly informed, including by the March 2001 letter, the appealed November 2001 rating action, a September 2003 SOC, and a December 2005 supplemental statement of the case (SSOC), of records obtained in furtherance of his claims, and thus by implication of records not obtained. The veteran was adequately informed of the importance of obtaining all relevant records. Neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence presenting a reasonable possibility of furthering any of the appealed claims. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was also duly afforded an official examination addressing his claimed disabilities, in October 2005, and the Board finds this examination, taken together with the all the evidence of record, adequate for rating purposes. The veteran and his authorized representative were afforded appropriate opportunity to address the claims, and did so by written submissions, as well as by testimony at the videoconference Board hearing before the undersigned in May 2007. At that hearing, the undersigned agreed to hold the record open for 30 days, to afford a further opportunity to submit records in furtherance of the claim. While the veteran submitted additional records at the hearing for which he waived RO review, no other additional records were forthcoming. There is no indication that the veteran or his representative expressed a further desire to address his claims which has not been fulfilled. The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. The claimant bears the burden of demonstrating such error. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Claims for Increased Evaluations for Left and Right Knee Disorders The veteran claims entitlement to higher disability ratings than the 30 percent assigned for the left knee disorder and the 30 percent assigned for the right knee disorder. He did not contend that his knee disorders had increased in severity since his official examination for VA purposes in October 2005. Disability evaluations are assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). In all cases, the Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2007). When reviewing the level of disability due to a service- connected joint disorder, when the rating is based on limitation of motion, the Board must consider an increased schedular rating based on functional loss due to pain on undertaking motion, weakened movement, fatigability, and incoordination. 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Potentially applicable rating criteria for disorders of the knees with arthritis are here listed. 500 3 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic code 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2007) 525 6 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 6 0 In flexion between 20° and 45° 5 0 In flexion between 10° and 20° 4 0 Favorable angle in full extension, or in slight flexion between 0° and 10° 3 0 38 C.F.R. § 4.71a, Diagnostic Code 5256 (2007) 525 7 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2007) 526 0 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2007) 526 1 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2007) 526 2 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2007) At the official examination of the knees for rating purposes in October 2005, the veteran complained of progressively disabling conditions of the knees. The veteran's medical history of surgeries, physical therapy, anti-inflammatory medication, and trigger injections was noted. He reported that the left knee was slightly worse that the right, and that he his symptoms were essentially constant all day, though they were exacerbated by staying in any one position for a long time. He reported that his work involved maintenance equipment logistics for a Naval base, and that he had lost about five days of work in the past year. Current medication for his knees was noted. He reported that he did not exercise. The examiner noted that the veteran's global symptom picture included snoring, early morning awakening, and daytime drowsiness, all noted to be consistent with obstructive sleep apnea. The examiner did not find significant sleep impairment associated with the veteran's knees. The veteran was observed to be obese and in no acute distress. Upon that examination, scars over the knees were not found to be tender, disfiguring, ulcerated or unstable, or adherent to underlying structures. The knees showed 1+ bony swelling, crepitus on motion, and likely effusion. Knees range of motion was from zero to 120 degrees flexion and to zero degrees extension for the left knee, and from zero to 140 degrees flexion and to zero degrees extension for the right knee. Extension of the knees was noted to be without pain, and the flexion of the left knee was note to be limited by 10 degrees due to pain. The examiner considered DeLuca factors, noting that pain, fatigue, weakness, and lack of endurance were all present in the left knee, though pain was the greatest impairing factor. The examiner noted that pain, weakness, and lack of endurance were also disabling factors for the right knee. The examiner commented that while the veteran's knee disorders did not preclude his current sedentary work, they did preclude recreational activities beyond occasional walking. These findings and conclusions on the official examination are reasonably consistent with recent treatment records, which include assessments of severe disability in each knee, more so on the left. The veteran has been assigned a 30 percent evaluation for each knee under Diagnostic Code 5257. Under that code, as noted above, the maximal, 30 percent rating is assigned for severe disability in a knee. Here, the veteran has been assigned the maximal schedular rating under that code for each knee. These ratings are reasonably assigned based on the weight of the evidence showing bone swelling and disabling pain limiting functional use of each knee and limiting endurance in each knee. The October 2005 examiner noted evidence of favorable ankylosis in flexion of the left knee of 20 degrees. However, this statement cannot be interpreted to mean that the veteran's left knee is ankylosed in favorable position, since that would mean absence of movement of the joint, whereas clearly the veteran has movement of the joint. It also cannot be interpreted to mean extension limited to 20 degrees, since the examiner found extension to zero degrees. The only reasonable interpretation is that the veteran has progressive arthritis of the knee (as is well-established in the medical record), with medically noted bone swelling and bone spurring shown on x-rays, to some degree interfering with movement in extension beyond 20 degrees. This is consistent with the official examiner's finding of that the veteran walked with a limp favoring the left knee. The Board will not interpret this to mean the veteran has lost extension in the left knee beyond 20 degrees, since this was clearly not found on the official examination. Rather, more reasonably, the Board interprets the condition as representing some limitation of extension of the left knee based on this motion-impairing arthritis as well as pain on motion, as equivalent to limitation of motion to 10 degrees, and thus warranting a separate, 10 percent evaluation for limitation of extension of the left knee under Diagnostic Code 5261. The Board finds that the preponderance of the evidence is against a higher separate evaluation for limitation of extension, based on the absence of sufficient evidence suggesting that still greater limitation of extension is present. The Board notes that the official examiner's conclusion that the veteran's knee disorders preclude nearly all recreational activity is consistent with recent findings upon treatments, of severe disability in each knee, more so on the left. However, the currently assigned 30 percent evaluation for each knee is already reflective of severe disability. Because the official examiner in October 2005 found full or nearly full range of motion in each knee, at least in terms of degrees of motion, and because the veteran's pain and other DeLuca factors affecting functional use are reflected in the ratings assigned under Diagnostic Code 5257, the Board does not find that a higher or additional disability rating is warranted based on limitation of motion, beyond the separate 10 percent here assigned based on ankylosing- associated limitation of extension in the left knee. The Board considers and rejects, based on the weight of the evidence against the presence of such additional disability, any additional higher disability rating assigned for either knee under Diagnostic Code 5256 for ankylosis of a knee (as discussed, no actual ankylosis immobility of either knee), under Diagnostic Code 5260 for limitation of motion in flexion (no compensation warranted on this basis for pain and other DeLuca factors when these disability parameters are already compensated under Diagnostic Code 5257), under Diagnostic Code 5261 for limitation of motion in extension (same analysis as for flexion, beyond the 10 percent assigned by this decision for the left knee), or under Diagnostic Code 5262 for impairment of the tibia and fibula (associated with malunion, nonunion, or loose movement, with none of these shown by the evidence). Based on the absence of tenderness, disfigurement, ulceration, instability, or adherence to underlying structures, a separate rating for scars of the left or right knee is not warranted. 38 C.F.R. § 4.117, Diagnostic Codes 7801-7805 (2007). At his hearing the veteran variously contended that he had continuous pain in his knees, day and night, including pain that interfered with his sleep, and that he had episodes of acute, stabbing, "excruciating" pain in the left knee. (hearing transcript, page 5). He testified that he had to sit down after ten minutes due to his knees, and that his legs were always swollen. He did not, however, contend that his knees would give-way or were otherwise unstable. He testified that he could not fully straighten the left leg. (hearing transcript, page 5). Also at the hearing, as well as in submitted statements in May 2007, a private physician stated that the medical findings upon the recent official examination included ankylosis in the left knee, warranting a higher disability evaluation for that knee based on ankylosis. However, the Board here finds that the weight of the evidence, including both the veteran's lay statements as to symptoms as supported by the record, and the medical evidence of record, are against assignment of a higher disability evaluation than the 30 percent assigned for each knee (beyond the separate 10 percent rating here assigned for left knee limitation of extension), based on severe disability under Diagnostic Code 5257. ORDER Entitlement to an increased rating above the 30 percent currently assigned for the left knee disorder is denied. An additional 10 percent rating, but no more, is granted for the left knee disorder, based on limitation of extension, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an increased rating above the 30 percent currently assigned for a right knee disorder is denied. REMAND The claim for service connection for hypertension is remanded for two reasons: absence of adequate VCAA notice, and absence of a required VA examination. As noted in the above decision, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this instance, the VCAA notice issued to the veteran in March 2001, prior to the appealed November 2001 rating action, addressed the veteran's claims for increased evaluations for knee disorders, but failed to address the veteran's claim for service connection for hypertension. The RO did not thereafter provide adequate VCAA notice addressing the hypertension claim, to cure the failure to provide such notice prior to the appealed RO decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Additionally, the veteran has not been afforded a VA examination to address the question of etiology of his claimed hypertension as related to service. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A private physician provided two written statements in May 2007, as well as testimony at the veteran's May 2007 hearing before the undersigned, to the effect that some elevated or somewhat elevated blood pressure readings in service constituted hypertension as an ongoing condition that persisted from service to the present. Thus, by the blood pressure readings in service noted by this physician, and by this physician's opinion, the veteran has presented evidence of disease in service and an indication of continuity between that in-service disability and the current claimed disorder. Numerous recent medical records document the veteran's current, medicated hypertension. The claims file does not contain sufficient medical evidence to ascertain whether the medical conclusion espoused by the private physician is in fact supported by the medical record, or rather the Board does not find the medical record to be satisfactorily developed in that regard. In reference to such a determination, it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board here ascertains that the private physician's opinion, by itself, is insufficient to end the medical inquiry as to whether the veteran's current hypertension developed in service or is otherwise causally related to service. Accordingly, the Board finds that all four criteria within 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4) require additional medical development in the form of a VA examination to address whether hypertension was present in service, and whether current hypertension is by that means or otherwise causally related to service. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a VCAA notice letter specifically addressing the claim for service connection for hypertension, in compliance with current law and judicial holdings. a. The veteran should advised of the relative roles and responsibilities of the claimant and the VA in development of the claim. He should be asked to provide information as to evidence pertinent to his claim for service connection for hypertension. He should also be asked to submit all relevant evidence he has, and should be informed that it is ultimately his responsibility to see that pertinent evidence is obtained. The veteran should also be informed as to such potential downstream issues as disability rating and effective date, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), notwithstanding notice provided in March 2006. b. The RO should undertake any indicated development including based on any response from the veteran, as part of the duty to assist. All records and responses received should be associated with the claims file. 2. Thereafter, afford the veteran a cardiovascular examination to address whether current hypertension is etiologically related to service. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. a. The examiner should carefully review the claims folder, including in particular service medical records and any blood pressure readings or other findings indicating the presence or absence of hypertension, post-service medical records, and the statements and opinion of Dr. Bash in letters within the claims folder dated May 10, 2007, and May 22, 2007, and in testimony provided by Dr. Bash at the veteran's May 2007 Board hearing. b. The examiner should address whether there is at least a 50 percent probability or greater (at least as likely as not) that that currently diagnosed hypertension developed in service, was present to a disabling degree within the first post-service year, or is otherwise causally related to service. In providing this opinion, the examiner should take into consideration the requirement for recognition of hypertension within VA rating criteria, that blood pressure readings be "predominantly" elevated. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2007). 3. After completion of the above and any additional development deemed necessary, the remanded issue should be reviewed with consideration of all applicable laws and regulations. If the benefit sought remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2007). ______________________________________________ MICHAEL LANE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs