Citation Nr: 0811627 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 01-08 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable evaluation for chronic prostatitis prior to May 8, 2003, and an increased evaluation in excess of 20 percent thereafter. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for prostate cancer. 3. Entitlement to service connection for a cervical spine disability. 4. Entitlement to service connection for a lumbar spine disability. 5. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran had active service from May 1965 to March 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in September 2000, April 2004 and August 2005 by the above Department of Veterans Affairs (VA) Regional Office (RO). Service connection for prostatitis rated as noncompensably disabling has been in effect since 1971. In May 2000, the veteran filed a claim seeking a compensable rating. The RO denied the matter in September 2000, and the veteran perfected an appeal therefrom. By rating decision in August 2004, the RO increased the zero percent rating to 20 percent, effective May 8, 2003. Given the foregoing procedural development, the issue on appeal for this matter is as listed in the title page. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending this "staged" rating doctrine to cases also involving the more traditional claim for an increased rating where the veteran is not appealing his initial evaluation but, instead, requesting a higher rating for an already established service-connected disability); See also AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for cervical spine, lumbar spine and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By history and currently, the objective medical evidence shows that the veteran's prostatitis is essentially asymptomatic. 2. The veteran is not shown to have developed prostate cancer as a consequence of VA carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault in connection with any medical treatment or lack thereof. CONCLUSIONS OF LAW 1. Prior to May 8, 2003, the criteria for a compensable rating for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7527 (2007). 2. Since May 8, 2003, the criteria for a rating in excess of 20 percent for prostatitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.115a, 4.115b, DC 7527 (2007). 3. The criteria for compensation under 38 U.S.C.A. § 1151 for prostate cancer have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.361 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Law and Regulations for Increased Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) extended the "staged" rating doctrine to cases also involving the more traditional claim for an increased rating where the veteran is not appealing his initial evaluation but, instead, requesting a higher rating for an already established service-connected disability. As noted above, service connection was granted for the veteran's prostatitis by a rating decision dated in August 1971, and a noncompensable disability evaluation was assigned thereto under the provisions of DC 7527. See 38 C.F.R. § 4.115b (2007). The veteran filed a claim for an increase in May 2000. The veteran appealed. In August 2004, the RO issued a rating decision which increased this evaluation to 20 percent disabling, effective May 8, 2003. Diagnostic Code 7527 provides for the evaluation of prostate gland injuries, infections, hypertrophy and postoperative residuals. These disabilities are to be rated as voiding dysfunction or urinary tract infection, whichever is predominant. In this case, the Board finds that the veteran's complaints center around a voiding dysfunction. Voiding dysfunction is addressed under 38 C.F.R. § 4.115a, which directs that the particular condition be rated as urine leakage, urinary frequency, or obstructed voiding. Evaluation under urinary frequency encompasses ratings ranging from 10 to 40 percent. A 10 percent rating contemplates daytime voiding interval between 2 and 3 hours, or awakening to void 2 times per night. A 20 percent rating contemplates daytime voiding interval between 1 and 2 hours, or awakening to void 3 to 4 times per night. A 40 percent rating contemplates a daytime voiding interval less than 1 hour, or awakening to void 5 or more times per night. See 38 C.F.R. § 4.115a. Urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials, which must be changed, less than 2 times per day. When there is leakage requiring the wearing of absorbent materials, which must be changed 2 to 4 times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day, a 60 percent evaluation is warranted. Id. Finally, obstructed voiding includes ratings ranging from noncompensable to 30 percent. A noncompensable rating contemplates obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating contemplates marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of the following: (1) post-void residuals greater than 150 cubic centimeters (cc's); (2) uroflowmetry; markedly diminished peak flow rate (less than 10 cc's per second); (3) recurrent urinary tract infections secondary to obstruction; (4) stricture disease requiring periodic dilatation every 2 to 3 months. A 30 percent rating contemplates urinary retention requiring intermittent or continuous catheterization. Id. The rating schedule authorizes the assignment of a zero percent (noncompensable) evaluation in every instance in which the rating schedule does not provide such an evaluation and the requirement for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. The pertinent evidence of record includes a private consultation report dated in July 1998. At that time the veteran denied a history of urinary frequency, hesitancy, nocutria, or hematuria. Subsequent records show he was diagnosed with prostate cancer in 1999, but the related clinical records do not mention prostatitis or symptoms associated with it. During VA examination in February 2000, the examiner reviewed the veteran's medical history noting that on examination in 1971, three years post service, the veteran's prostate was normal in shape and size. It was slightly tender and there were some white blood cells (WBC) noted on a smear. The diagnosis was chronic prostatitis, asymptomatic. Subsequent examination in 1981 again showed the prostate was normal in size and consistency. Urinalysis was essentially negative. During a period of psychiatric hospitalization in 1982 there was no mention of any prostate symptoms or findings. Subsequent evaluations in 1985, 1986, and 1998 were likewise negative. The veteran was later diagnosed with prostate cancer in October 1999. On current examination there was moderate tenderness but no significant enlargement of the prostate and no nodules were palpated. In November 2000, during a follow-up evaluation for the recently diagnosed prostate cancer, the veteran reported occasional urinary frequency. In June 2002, the veteran's private physician reported treatment of the veteran since 1999. He noted the veteran's history of chronic prostatitis with symptoms of burning urination and severe urinary frequency which had greatly altered his lifestyle and caused severe stress. However, there was no indication in the pertinent clinical records that the physician actually treated the veteran for prostatitis. During VA examination in April 2003, the examiner noted the veteran's history of prostatitis and prostate cancer, noting that at the time of the cancer diagnosis there was no mention of chronic infection. The veteran's chief complaints were of urinary frequency, nocturia one to two times per night and urinary urgency. The veteran later contacted the examiner by phone stating that he had to wear protective diapers, changing them three times a day due to leakage. The examiner noted that SMRs indicated findings on urinalysis due to acute prostatitis or urinary tract infection and which was probably treated since on separation his urinalysis was completely free of WBC, indicating no evidence of chronic infection. Likewise there was no documentation from physicians from the time the veteran was separated in 1968 until the time he was treated specifically for prostatitis. The examiner noted the veteran's history was also significant for hypertension and diabetes mellitus, both of which often cause mild urinary frequency and urgency. The current pathological report did not indicate any findings of chronic infection. During a May 2003 VA urology evaluation the veteran complained of some voiding dysfunction, but no dysuria or gross hematuria. In November 2003, he complained of incontinence, indicating that he needed up to six diapers a day although he normally voided with a decent stream. During VA examination in August 2004, the veteran reported that initially he wore 4-5 pads a day, but currently was only wearing 2 pads since taking the medication Terazosin for his incontinence. However, he continued to have urinary frequency and nocturia 2-3 times a night. He has not required any antiobiotics and his situation as it related to prostatitis was essentially stable. Examination was within normal limits. The clinical impression was chronic prostatitis moderate and stable, manifested by erectile dysfunction, bladder incontinence, loss of vitality and reactive emotional difficulties. In August 2004, the RO increased the rating for prostatitis to 20 percent based on the May 2003 urology report findings, which the RO determined first showed an increase in pathology. Subsequent records dated in 2004 and 2005 show the veteran's primary complaint was of nocturia two to five times per night. He denied frequency, urgency or dysuria. Otherwise there were no new problems reported and no change in status. During VA examination in September 2005, the examiner noted the many previous examinations and urinalysis tests had shown no evidence of infection or inflammation of the prostate. Examinations were within normal limits with no current evidence of prostatitis or current antibiotic therapy. The clinical impression was chronic incontinence by history of unknown etiology, possibly related to medications for hypertension. Recent VA outpatient treatment records show the veteran's primary complaint was of nocturia 6 times a night. Otherwise there were no new problems reported and no change in status. During VA examination in September 2007 the veteran's primary complaint was of urinary incontinence which the examiner attributed to his treatment for prostate cancer. There were no complaints consistent with prostatitis. The veteran reported using adult diapers, changing 6-7 times within a 24 hour period. He was not on antibiotic treatment and there was no current evidence of prostatitis. Physical examination was normal. Urinalysis was also normal with no evidence of infection or WBC. A urine culture showed no growth. Based upon the evidence, the veteran's disability picture resulting from his prostatitis does not meet or approximate the requirements for a compensable evaluation prior to May 8, 2003 or in excess of 20 percent since that time. Review of the medical evidence reveals very few, if any, recent clinical findings attributable to prostatitis, including the multiple VA examinations, which repeatedly found no evidence of it. Instead, treatment records reflect no specific genitourinary complaints other than mild urinary frequency and incontinence, which VA examiners have repeatedly attributed to the veteran's treatment for non service- connected disabilities, primarily prostate cancer, not prostatitis. By history and currently, although the veteran's subjective complaints have indicated increased impairment, the objective findings associated with his service-connected prostatitis have remained essentially normal, and the medical reports of record substantiate such. Consequently, the Board finds that the noncompensable and 20 percent evaluations assigned adequately reflect the clinically established impairment experienced by the veteran. To whatever extent he contends that higher evaluations are warranted at any time during the appeal period, the Board finds that the evidence preponderates against higher ratings for the veteran's prostatitis, the benefit-of-the-doubt doctrine is inapplicable, and an increased rating, other than these assigned here, must be denied. 38 U.S.C.A. § 5107(b). Pertinent Law and Regulations for 1151 For claims received after October 1, 1997 (as in this case), compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 are payable for additional disability not the result of the veteran's own willful misconduct, where such disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee, or in a Department facility, where the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or in the case of an event not recently foreseeable. 38 U.S.C.A. § 1151; see also VAOPGCPREC 40-97. Therefore, the veteran is required to show fault or negligence in medical treatment in order to be awarded compensation pursuant to 38 U.S.C.A. § 1151. The veteran argues that lack of appropriate VA medical care caused him to develop prostate cancer. Specifically he asserts that after service discharge in 1968, VA refused to treat him for prostatitis even though he had been treated for it during service. He then sought treatment from a private doctor. He states that due to VA's failure to treat him initially, his prostatitis worsened and he eventually developed prostate cancer in 1999. He essentially asserts that had he been afforded earlier evaluation and treatment, he would not have developed prostate cancer. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. A review of the record shows that the veteran separated from service in 1968. Three years after service discharge, he was provided a VA examination in 1971. With the exception of some WBC on urinalysis, his genitourinary system was essentially normal on examination. At that time he denied any voiding dysfunction. The remaining post-service treatment records do not document significant urological complaints in the years preceding the diagnosis of prostate cancer in 1999. Clinical examination in 1981 showed the prostate was normal in size and consistency. Urinalysis was essentially negative. During a period of psychiatric hospitalization in 1982 there was no mention of any prostate symptoms or findings. Subsequent records dated in 1985, 1986, and 1998 were likewise negative. Further and significantly, VA examiners have reviewed the record, and in at least one case consulted medical treatises, concluding that prostate cancer was unrelated to prostatitis. See VA examinations in February 2000, April 2003 and September 2007 (VA examiners expressly denied any relationship between the veteran's prostatitis and service). In sum, the veteran did not develop prostate cancer due to treatment or lack of treatment by VA. There is no competent evidence showing that the veteran required evaluation and treatment in the years preceding his cancer diagnosis which would have diagnosed prostate disease to include cancer. There is no documentation of urinary complaints during that time or elevated laboratory readings and there is no evidence that the veteran would have been diagnosed as having cancer earlier due to VA treatment or the lack thereof. In addition, there is no evidence that the development of prostate cancer was due to an event not reasonably foreseeable. Accordingly, the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for prostate cancer have not been met. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). 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; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Court has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 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 a SOC or supplemental SOC (SSOC), is sufficient to cure a timing defect). 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, 889 (Fed. Cir. 2007) In letters dated in February 2001, October 2004, April 2005, and March 2006, the RO informed the veteran of its duty to assist him in substantiating his claims, and the effect of this duty upon his claims. The letters informed him that VA would obtain all relevant evidence in the custody of a Federal department or agency, including VA, the service department, the Social Security Administration, and other pertinent agencies. He was advised that it was his responsibility to send any other medical records supporting his claims, or to provide a properly executed release so that VA could request the records for him. The veteran was also specifically asked to provide "any evidence in your possession that pertains to your claim." The contents of the above letters provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided opportunities to submit additional evidence. The purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. In addition, it appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The veteran's service medical records, VA and non VA treatment reports, and VA examinations are of record. The veteran has challenged the adequacy of the 2005 VA examinations on the basis that, the medical opinions were provided by a physician's assistant not medically competent to diagnose medical conditions. The Board observes, however, that there is no legal requirement that an examiner in fact be a physician. See Goss v. Brown, 9 Vet. App. 109 (1996) (to qualify as an expert, a person need not be licensed to practice medicine, but just have special knowledge and skill in diagnosing and treating human ailments); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Moreover, the Court has recently held that "a nurse practitioner . . . having completed medical education and training, fits squarely into the requirement of section 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions." See Cox v. Nicholson, 20 Vet. App. 563 (2007). Thus, the veteran's complaints do not provide a basis upon which to remand this claim for additional examination. The Board notes that it appears the veteran was awarded Social Security Administration (SSA) benefits. While the RO did not obtain the veteran's SSA records, additional development to obtain these records in this case is unnecessary in view of the medical evidence currently of record. See Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained). The veteran has indicated that the onset of the date of these benefits was 1986, more than 10 years prior to his claim for increase. There is no indication that the contents of any of these records would provide another permissible view of the current level of prostatitis or otherwise aid in substantiating the claim. It is also unlikely that these records would do more than merely corroborate the medical evidence already of record attesting to the lack of nexus between the veteran's service-connected prostatitis and his subsequent development of prostate cancer. Thus, no useful purpose would be gained in further delaying a decision in this case by requesting SSA records in this instance. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. More recently, the Court concluded that, for an increased rating claim, VCAA notice should include notice that evidence of increased severity of the disorder or of greater interference with work or activities of daily life is required to support a claim for increased evaluation; that it include at least general notice of more particularized bases of granting increased evaluations where, as here, particular criteria beyond mere increase in severity may be required for assignment of a higher disability rating; that it include notice that a particular rating will be assigned by applying diagnostic codes; and that it include notice, in the form of examples, of the kinds of evidence required to support the increased rating claim. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). While the veteran was clearly not provided this more detailed notice in the aforementioned letters, the Board finds that he is not prejudiced by this omission in the adjudication of his increased rating claim. The VCAA notice letter in February 2001 was followed by readjudication of the claim in the August 2001 SOC and the numerous SSOCs dated between April 2002 and September 2007, which contain a list of all evidence considered, a summary of adjudicative actions, included all pertinent laws and regulation, including the criteria for evaluation of the veteran's prostatitis, and an explanation for the decision reached. Thus, the purposes of the notice requirements have not been frustrated and any error in failing to provide additional notice has not affected the essential fairness of the adjudication process because the veteran had actual knowledge of what information and evidence is needed to establish his claims. See Sanders supra. In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision. Since the claims are being denied, such matters are moot. Thus, the veteran has not been prejudiced in this regard. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to a compensable rating for prostatitis prior to May 8, 2003 is denied. Entitlement to a rating in excess of 20 percent for prostatitis since May 8, 2003 is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for prostate cancer is denied. REMAND The veteran has also asserted that he has disabilities involving the neck, back and right knee that had their onset during service. In an October 1989 statement the veteran indicated that he was unable to work and had been receiving SSA disability benefits since 1986. The Court has held that, where VA has notice that the veteran is receiving social security disability benefits, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, as the SSA records are potentially relevant, to the extent that they may contain medical findings and other conclusions that might be determinative in the disposition of the claims, they must be obtained. Preliminary review of the record discloses other reasons for remanding the case. In this case, with the exception of single episode of treatment for a right knee injury, SMRs are entirely negative for pertinent disability. Although the veteran has reported sustaining injuries in a jeep accident in 1966 there is no evidence of that in the record. However of record is a statement from an individual purporting to have first hand knowledge of the veteran's condition in her capacity as a registered nurse from 1963 to 1973. She indicated participating in evaluation and treatment of the veteran in 1968 for chronic back and right knee pain. Additionally, current diagnoses of neck, back and knee disorders have been made. As such, a VA examination is needed to determine whether the veteran has the claimed disabling disabilities and, if so, whether they are related to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain the veteran's Social Security Administration records, to include underlying medical records associated with the pertinent administrative decision, and include them in the claims folder. 2. Ask the veteran to provide any medical records, not already in the claims file, pertaining to post-service treatment or evaluation of his claimed disabilities, or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. Document any attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the veteran, so inform the veteran and request that he obtain and submit it. 3. The veteran should also undergo appropriate VA examination to determine the nature, extent, and etiology of any current disabilities involving the cervical spine, lumbar spine and right knee. The claims folder must be made available to the examiner(s) for review of the case, and the examination report(s) should include discussion of the veteran's documented medical history and assertions. A notation to the effect that this record review took place should be included in the report. All indicated tests and studies are to be performed and the examiner should review the results of any testing prior to completing the report. All findings should be reported in detail. Complete diagnoses should be provided. a. The examiner should discuss the nature and extent of any disability involving the cervical spine, lumbar spine and right knee, if present, and then set forth the medical probability that any disability is traceable to any incidents, symptoms, or treatment the veteran experienced or manifested during service. Specifically, the examiner should address the veteran's injuries during service as the possible onset of any current disorder. b. The examiner should specifically address whether it is more likely than not (i.e., to a degree of probability greater than 50 percent), at least as likely as not (i.e., a probability of 50 percent), or unlikely (i.e., a probability of less than 50 percent) that the clinical manifestations of cervical spine, lumbar spine or right knee disabilities developed as a result of injuries while the veteran was in service from or within one year following his separation from service in 1968. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate each claim by evaluating all evidence obtained after the last statement or supplemental statement of the case (SSOC) was issued. If the benefits sought on appeal remain denied, furnish the veteran and his representative an appropriate SSOC containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, including VCAA and any other legal precedent. The veteran 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). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs